293 F. 532 | 2d Cir. | 1923
The plaintiffs in error have been convicted under an indictment which charged them with having conspired to defraud the United States by obstructing and preventing the United States from seizing and administering a certain indebtedness of the* defendant Rumely to the Imperial German government. It was alleged as part of the conspiracy that the defendants should conceal the fact of such indebtedness to the German government, and should make false and misleading reports to the Alien Property Custodian of the United States, and so obstruct and prevent the transfer and payment of that indebtedness to such Custodian. The defendants were acquit
Counsel for the defendants moved to set aside the verdict and for an arrest of judgment, which motions the court denied. In doing so Judge Grubb said:
“I listened to the evidence with patience for five or six weeks as it was being introduced. I listened to the summing up of counsel, and I am not disposed to say that the jury did wrong in bringing in the verdict which it did.”
And in imposing sentence the court .said:
“Gentlemen, of course, the question of your guilt or innocence is complete, as far as I am concerned, by the verdict of the jury. I do not have any disposition to criticize the jury’s verdict. Now, if I were privileged in passing sentence to consider only the punishment for you individually, I could make the sentence very nominal, in view of the fact that you have already been severely punished. I am sure that you have shown the good reputation which you have borne from exceptional men, and the recommendation of the jury has been for mercy. However, my duty is not confined alone with fixing the sentence, but the court is bound also to consider the duty of enforcement of the law, and in my humble judgment there is no more — no duty that is so outstanding nowadays on the part of a judge than to adequately enforce the law. In this case the jury have found that an important law has been violated by you gentlemen. The law was passed to aid this country in the war, and was vital somewhat to the proper conduct of the war. I think the court would be derelict in its duty if it imposed a nominal sentence for such an infraction of the law as the jury has found in this ease. I think the judgment of the court should be substantial. If there are mitigating circumstances, as I am 'sure there áre, I think the proper place for them to be considered is in the plea for executive clemency, and not before the court. In view of that fact, I sentence each of you gentlemen, and all three of you gentlemen, to a term of imprisonment in the Atlanta Penitentiary at Atlanta, Georgia, for a year and a day. I will make it on each count to run concurrently.”
We have incorporated these remarks of the court into this opinion because we find ourselves so fully in accord with all that was said. There is no duty which the courts of this country owe to all the people which is more important than to see that law is adequately enforced. It is, of course, the primary duty of the court to see that no man is convicted of crime, except under and in accordance with the law. But if he has been so convicted the punishment to be imposed must be such as to make law respected and to safeguard society and government.
The defendants at the time of their indictment were engaged in business in the city of New York. Bach is a citizen of the United States, and each was born in this country. The defendant Rumely was educated at Notre Dame Uftiversity, in Indiana. He then studied in England, at' Oxford University, for something over a year. • From there he went to Germany, and spent a year at the University of Heidelberg, and then three years and a half at that of Freiburg. During his sojourn in Germany he appears to have lived on terms of intimacy with some of its leading men. He has been a man of affairs. In 1915 he began negotiations for the purchase of the Evening Mail, an old and well-established newspaper in New York. At the time he purchased
“There was a great deal of resentment against the biased reports that were coming, and that bias 1 had recognized was due to the absence of a news flow from the Central Powers.”
And he says he saw in that “a very great public opportunity.” He thought he could get strong financial support for his proposed" purchase of the Mail, as he “intended in that paper to fight the British blockade” which he regarded as unwarranted and illegal.
The defendant Kaufmann is a member of the New York bar, and has been for some years associated with the defendant Lindhcim in law practice. He entered Harvard College, but was compelled by serious illness to withdraw from it. As a result of his illness he lost his eyesight. He nevertheless on the restoration of his health, and notwithstanding the loss of his sight, entered Columbia Law School from which he was graduated. He immediately thereafter took the bar examinations and was admitted to practice.
The defendant Lindheim is a graduate of Johns Hopkins University and of the Columbia Law School. He has been a member of the bar of New York for a number of years, and previous to the formation of his own firm served in the offices of .several prominent law firms in New York City.
There is much evidence in the record given by leading members of the bar of New York and others as to the excellent character of these defendants. This, as the jury were properly instructed, the law permits to be done, upon the theory that defendants, who have borne good reputations in the community in which they live for right living and honorable conduct, would be less liable to do dishonest or criminal acts than those who are unable to show that they have borne such good reputations. The jury in this case was properly charged:
“If you believe a defendant is guilty, in spite of Ms previous good character, he should be convicted; but if yon believe, after considering all the testimony, that there is a reasonable doubt of his guilt, by reason of his good, character, then it would be proper to acquit him because of his good character.”
The trial began on November 3, 1920, and occupied 30 court days. During the trial 166 witnesses were examined, 670 exhibits were received in evidence, and the record fills 4 volumes, of 2,139 printed pages. There are 249 assignments of error, which occupy 116 printed pages. Of these assignments of error, 206 relate to the admission or exclusion of evidence, 24 to the charge to the jury, 7 to the denial of motions to set aside the verdict, 8 to the denial of motions to dismiss the indictment, and 3 to the denial of motions requiring the government to elect on which counts it would go to trial. ‘We have on several occasions condemned the practice of taking so numerous assignments of error. The practice is not conducive to the administration of justice in appellate courts. Many such assignments of error are inconsequential, and of so little importance that the court should not be asked to review them.
It appears that on March 18, 1915, defendant Rumely and, Samuel S. McClure obtained an option to purchase the New York Evening Mail, a paper published in the city of New York. The option was for the purchase of the property subject to an existing mortgage of $400,-00Q, by the payment of $650,000 in cash, and the issuance to the vendor of $125,000 in second mortgage 6 per cent, notes of the company. Eater McClure assigned his inter'est in the option to Rumely. The contention of the government throughout the trial was that tire money which Rumely used in the purchase of this paper came from the Imperial German government. The contract for the sale of the paper was closed on June 1, 1915, when Rumely paid $748,000 by checks charged against his account with the Merchants’ Exchange National Bank. The paper steadily lost money after it got into Rumely’s hands, and the- latter borrowed additional money, for which he gave at one time a note'of $750,000.
The testimonj'' discloses that on October 26, 1917, Rumely had an interview with the Chief of the Bureau of Investigation of the Department of Justice, in which interview he informed the Chief that he had received $1,200,000 from the two German-Americans who were in Europe at the time, one of whom was Herman Sielcken; and on a •subsequent occasion he told him that the other person who furnished him the money was Mrs. Busch, who was from St. Eouis, “the mother of the present head of the Busch family, connected with Anheuser-Busch Brewing Company.” Her deposition is in the record, in which she states as follows:
“My name, is Lilly Busch. I reside at No. 1 Busch place, in the city of St. Louis, state of Missouri. In the month of May, 1914, I visited Germany, and*537 returned to tlie United States in the month of June, 1918. While in Germany, after the beginning of tiro war, mail from the United Sttates was interrupted frequently, and communication between the United States and Germany for the period of this time was suspended. I at no time furnished to any one any money, by subscription, loan, or otherwise, for the purchase of the New York Evening Mail, or any interest in it.”
In the course of the interview between Rumely and the Chief ■of the Bureau of Investigations, when it was suggested by the latter that, as Rumely had talked the matter over with Dr. Albert, Albert had placed his official approval on the proposition, and the German government had advanced the money to Sielcken and his other associates, who had in turn furnished it to him, Rumely insisted that was not likely;.and at no time did he tell the Chief that the money had come through Dr. Albert, or the other German representatives, although the evidence in the record shows quite conclusively that it did come in that way, whether or not it was the money of the German government. On the contrary, Rumely told him that the money had been sent him by private individuals through the Atlantic (Merchants’ Exchange) National Bank. In reference to Rumely’s statement that the money came in part from Herman Sielcken, the story seems to have been regarded by the jury as improbable as that it came in part from Mrs. Busch.
The claim of the government is that the money with which the defendant Rumely bought the Mail was paid to him by Dr. Albert, and belonged to the Imperial German government, and was part of the proceeds of two German government loans that were financed in the 'United States, and that the other part of it was money that came from the British government into the hands of Hays, Kaufmann & Bind-heim, Albert’s lawyers, as the proceeds of a refund or reimbursement for the seizure of the cargo of the steamship Wilhelmina, and therefore was the money of the German government — the Wilhelmina being a German government project. The claim of the defendants is that none of the money that went into the purchase of the paper, or to finance the publication of it thereafter, was the money of the. German government. They contend that the money received directly or indirectly through Albert was money which he had received for the account of one Herman Sielcken, and not for the Imperial German government; and they contend that the money in the hands of Hays, Kaufmann & Bindheim, which arose out of the Wilhelmina transaction, and went into the financing of the Mail, was not the money of the German government, but of the Central Purchasing Agency.
It was necessary for the government to satisfy the jury beyond a reasonable doubt, not ohlv that at least some of the money that was used in the purchase of the paper or in its subsequent financing was the money of the German government, but that the defendants knew that it came from that source. The testimony shows that Sielcken, although born in Germany, was an American citizen; that he and his wife were in Germany from April, 1914, until his death, which occurred in November, 1917; that he was living in Germany in retirement, and was very ill with arteriosclerosis. Plis wife testified that during this period she was constantly with him, and that his condi
“No; I never pledged or mortgaged any of the property that I held In Germany to enable anybody to purchase an interest in the New York Evening Mail. I did not pledge or mortgage any property at all during the time that X was residing over there with Mr. Sielcken.”
The government whs undertaking to show that Sielcken could not have made the loan for the purchase of the Mail from resources he had in Germany by accounting for his available resources there. This led to the inquiry whether he might have availed himself of a pledge or mortgage of her property for the establishment of a credit to enable him to transmit $1,500,000 to the United States from Germany for the purchase of the Mail. On her redirect examination she testified as follows concerning the investment of $1,000,000 in bonds:
“Do you know for wbat purpose tbe income of those bonds were used? A. Xes, sir. Q. Yes? A. The income of those bonds were used for our living over there. Mr. Sielcken had no property in Germany — investing this $1,000,-,000 which he had from Mr. Crossman over there to have an income, and to be able to pay the expenses, which we were always drawing, as we stayed over there longer. We only used to stay two or three months before that time. That is why he invested that money over there in bonds, and I am still paying from it over there. The income on those bonds was remitted from Hamburg, and that was expended as we needed it from time to time for our living expenses in House Eden.”
She testified without objection as follows:
“Q. Now, Mrs. Sielcken, do you know whether or not your' husband was at all times loyal to the United States of America? A. Absolutely. Q. Was Mr. Sielcken acquainted, if you know, with Dr. Albert? A. No; he was not acquainted. Dr. Albert was never introduced to my husband.”
Then she was asked: “Now, did you know ,or hear at any time of the name of Dr. Rumely?” This was objected to as calling for incompetent and irrelevant testimony, and as an attempt to prove something which was a part of the government’s case by a negative. ' The objection was overruled, and she was allowed to answer as follows:
“After my husband’s death in November, 1917, I got a newspaper slip from Switzerland, something about Dr. Rumely and the Evening Mail. That was the first time X heard anything about Dr. Rumely, I never heard prior to that time that I have just fixed of Mr. S. Walter Kaufmann, or of the firm of Hays, Kaufmann & Dindheim.” ~
“The firm of Crossman & Sielcken, to my knowledge, never made any contribution from its assets to the New York Evening Mail. We made no payment to the German representatives in the United States on Mr. Sielcken’s order from the assets of the firm at any time. I do not know the defendants Rumely, S. Walter ICaufmann, nor Norvin R. Lindheim, nor the other member of the firm of Hays, Kaui'mann & Lindheim, Mr. Arthur G. Hays, nor Mr. T. Raymond St. John. None of those gentlemen ever came to the firm of Grossman & Sielcken and. consulted with any person there with respect to Mr. Sielcken’s affairs. * * * I saw Mr. Sielcken at Baden-Baden in 1915. I was constantly in touch with him at that time. I discussed the affairs of the firm with him. I did not discuss anything with respect to the New York Evening Mail.” “Q. Of course, you yourself knew nothing about any New York Evening Mail at that time, as connected with Mr. Sielcken, did you? A. No, sir.
“Mr. Stoner: I object to that as irrelevant — whether he knew or not is immaterial.
“The Court: Objection overruled.
“Mr. Steuer: I except.
“In 1916 I also stopped at Baden-Baden. * * * I was with Mr. Sielcken practically during aU of his working hours. I remained at the house almost continuously. His working hours were from breakfast time until dinner, barring pehaps an hour or two that he would retire to his room at mid-day for rest. This was in July, 1916. Mr. Sielcken’s health was very bad at that time. As compared with his health in 1915, there was a very marked degeneration or deterioration, I should say, both physical and mental. I attempted to discuss business with him in July, 1916, but we did not get very far. There was no discussion at that time with respect to the New York Evening Mail. * * * While he was speaking about the war he never made any reference to any newspaper project that he had in the United States.”
And Mr. Sorenson, also a member of the firm of Crossman & Siel-cken, testified as follows:
“I have never met Dr. Rumely. I never made any payment out of the assets of Crossman & Sielcken for the benefit of the New York Evening Mail, or for Dr. Rumely, or any payment for Dr. Rumely, or any payment to the German representatives in the United States, for any purpose whatever. I itm still taking part in the liquidation of the firm, of Crossman & Sielcken. In the course of that liquidation, I have not come upon any writings of any ‘Character, relating to any investment in the New York Evening Mail by Mr.*540 Sielcken, or any loan for the purpose of enabling some one else to invest in the New York Evening Mail, or in any newspaper proposition.”
His testimony shows that he knew Dr. Albert, but never had any communication with him about the New York Evening Mail, or any conversation with respect to any transaction. in which the Imperial German government had acted in behalf of the firm of Crossman & Sielcken, and that his conversations with Dr. Albert did not relate to-any transaction of Herman Sielcken’s at all.
The deposition of Dr. Albert, introduced in evidence on behalf of defendants Kaufmann and Eindheim, was illuminating, and.no doubt the jury was greatly helped by it in reaching the verdict they did. Albert came to the United States from Germany in August, 1914. According to his own admissions he had entered.the service of the government of Germany in 1895, when he was 21 years of age, and from that time to the time when he came to the United States had been continually in the German public service. After the rupture of diplomatic relations between the United States and Germany, he returned to his own country and was made Alien Property Custodian, and later became Under Secretary of State. The following is an excerpt from his deposition:
“Q. You are at tbe present toe Under Secretary of State for tbe German. government, are you not? A. Yes. * * * Q. Then I take it you have been a government man practically all your life, bave you not, Dr. Albert? A. Yes. Q. You bave never been in private business, bave you? A. No.”
He earnestly insisted throughout the deposition that he came to-the United States “in a private capacity,” and that he was here representing the Central Purchasing Company, which was a company formed under German law to send foodstuffs and ráw materials from the United States to Germany. But when he came to the United States he had a rank with the German government of Privy Councilor. He and Dr. Dernberg arrived here about the same time, but • came on-different ship's. He admitted that Dernberg brought with him about $150,000,000 in German treasury notes to establish credits, but he only succeeded in selling about $5,000,000 of the notes. That amount was turned over to Albert for the purpose of buying “goods.” He was asked as to the $150,000,000 Dernberg brought over as follows:
“Now, flien, you expected tbe-proceeds to be turned over to you for the-purpose of buying materials to be sent to Germany, didn’t you? A. If be bad-sold them,. I certainly should bave spent tbe money.”
It appears that, soon after his arrival in the United States, Albert’s, deposition shows that a German press bureau was established to present the German side of things in America. He was asked as do William Bayard Hale and his connection with a news sheet put out by the-press bureau:
“Q. Well, but you do know whether he was connected with it, don’t you? A. I don’t, remember. Q. But you paid him $15,000 a year for bis services, didn’t you, Dr. Albert? A. I don’t know. Q. Then do you know whether tbe Hamburg-A.merican Line paid Wm. Bayard Hale $15,000 a year or not?A. No; I don’t know that either.”
“Q. But you had correspondence with Mr. Untermeyer about purchasing a newspaper in the United States, now, didn’t you? A. 1 don’t think I had such correspondence, hut I remember one day Mr. Untermeyer wrote to me he intended to buy the Sun, and wanted to know whether I would not take a minority interest in it. Q. Do you mean by that that Mr. Untermeyer wanted to know whether you personally would not take a minority interest in the Sun? A. Certainly not I personally. Q. But who was it who was to take this minority interest, then? A. I don’t remember. Q. Do you remember sending a cablegram to Berlin on that subject, Dr. Albert? A. 1 think I did. Q. Yes; and to whom was that cablegram addressed? A. To the Foreign Office. Q. And that cablegram was in connection with that minority interest Mr. Untermeyer wanted you to take in the New York Sun, was it not? A. Putting these things together, I conclude that it was.”
Soon after his arrival in the United States, Albert began discussing the purchase of a newspaper out of German government funds. The purchase of the New York Evening Mail and Harpers Weekly, among others, were under consideration. Albert says:
“I may even stato that various points wore discussed, with these people who were interested in the idea, whether it would be advisable to have a government paper, or have the money put in by private people; but after mature consideration wo all dismissed the idea of having the government put in the money. That was for obvious reasons, gentlemen; we were sure it would, ruin the paper. Q. Well, Dr. Albert, you mean, if the fact became known, it would ruin the paper, do you not? A. The situation is this gentlemen; Here is the difficulty. If you run a paper in German, if yon pay money out of government funds to run that paper you have to pay it through so many hands, you have to pay it through so many departments, that it is practically impossible to have it not known. Q. Yes; the fact is Dr. Albert you were spending a good deal of money for the Gorman government but not for a newspaper. Is that it? A. Certainly. Q. And not all of the money was being spent for purposes which you were making public? A. Certainly not. I was acting as a kind of secretary for a great many concerns and for the Embassy too and when they told me to pay a certain amount of money to somebody 1 paid it. Q. And you brought with you a very considerable amount of money which was the property of the German government didn’t yon? A. No. Q. Then, when did you first come into control of money which belonged to the German government, and with the power to spend it? A. I think it was soon after Dernberg came here — it may have been very soon after.”
In March, 1915, Albert and Rumely were conferring about the purchase of the Mail. Albert states that Rumely’s idea was that he would get some German-Americans, like Sielcken and Busch, or Mrs. .Busch, of St. Douis, to buy the stock of that paper, and that he wanted to get into touch with them in Germany, and wanted Albert’s aid in getting into touch with them. In May Albert informed Rumely that he had been placed in funds for the account of Sielcken, and that the latter
“Q. Can you state, Dr. Albert, just exactly wbat you said to. Dr. Rumely, and wbat Dr. Rumely said to you, on that occasion? We would like to get tbis conversation as complete as possible. A. Tbe substance of tbe conversation bas been tbis: I told Rumely that I bad been placed in funds for tbe account of Sielcken, and that Sielcken wanted me to give bim a loan. Then Rumely said: ‘No; that is not my proposition. I want Sielcken to invest in stocks.’ And so I told bim. No; I told bim that I bad not been authorized to put any money in stocks for Sielcken. Sielcken only wanted to give bim a loan. Then Rumely said to me: ‘Very well; if you have no authority to buy stocks for your principal, then you give me money as a loan.’ Then tbe conversation naturally continued into tbe details as to tbe condition of that loan, tbe amount of money which he was to get, and so on. I know we agreed; at first it was a smaller sum, but finally I think we agreed on about $750,000, as I remember it. I told Rumely that Sielcken was ready to give bim that loan, and he was at liberty to sell stocks from another loan. In fact, we wanted Rumely to do that, in order to redeem tbe loan as soon as possible. I think that was practically tbe end of it, gentlemen.”
It was agreed that Rumely should have entire control of the paper, that the right to appoint the board of directors should be in him, and that he should have absolute control of the éditorial policy of the paper. In June, 1915, Albert says he gave the money, $750,000, to Kaufmann, who had been his lawyer throughout the whole affair, with instructions to turn it over to Rumely.as a loan for the purchase of the Mail. The following excerpt is also instructive:
“A. About tbis mentioning Sielcken’s name? I. told bim not to mention it.
“Mr. I’owell: Now, in that same conversation in wbicb you said you bad been placed in funds for tbe account of Mr. Sielcken, did you say anything about the possibility of there being some one else interested in tbis proposition with Mr. Sielcken? A. I think I told bim it was Sielcken and possibly one other.
“Mr. Powell: Did Dr. Rumely say anything to you, or suggest the name of anybody as a person whom that other might be? A. I think be mentioned Mrs. Busch, but I don’t remember very well. It may be.
“Mr. Powell: And what did you say in reference to that suggestion of bis? A. I think be said it might be possible, but I am not informed about it.”
As is also the following:
“Q. Now, what did you report to Mr. Sielcken about tbis? A. I did not report to bim .at all. Q. Did you ever write to bim about this? A. No; I did not. Q. Did you ever cable to bim about it? A. No; I did not. Q. Or communicate with bim in any way? A. No; I did not, not directly. Q. Indirectly? A. Certainly I did. Q. Through whom did you communicate with bim? A. Dernberg went over and straightened it out. Q. And did be cable to you? A. No; why should be? Q. Did be write to you about it? A. No. Q. Did Mr. Sielcken write to you about it? A. No. Q. Did tbe German Foreign Office communicate with you about it? A. I don’t think so. Q. Did any person in Germany communicate with you about it? A. I don’t think they did. Q. That is to say, before you went to employ Mr. Kaufmann to put through these transactions, resulting in the purchasing of tbe Evening Mail and tbe loan of $750,000 to Edward A. Rumely, you did not have any communication with any person in Germany? A. No; but with Dernberg. Q. Where was be then? A. In New Tork. Q. Dr. Dernberg was still in New York? A. Yes. Q. Did be show you any communication from any person in Germany? A. He simply told me, ‘You are authorized, to pay this money for Sielcken.’ Q. Did he give you any money to pay it with? A. No; I took it out of tbe funds I bad. Q. Well, and wbicb funds were they? A. I*543 handled a great many funds as a banker, and I took it out of them. Q. Where did you get those funds?- A. From a great many sources, by German banks, by the little loan we had placed in the United States. * * * Q. And one expenditure you did make was this matter of $750,000, which you made without a scrap of writing of any sort? A. But the word of Dernberg. * * * Q. Now, then, on the simple word of Dr. Dernberg you agreed to turn over $750,000 to Dr. Iluinely? A. Certainly I did; and again and again I would do it. Q. You didn’t care w'hat Mr. Sielcken thought of it, did you? It was enough for you that Dr. Dernberg said, ‘Pay him the money.’ Isn’t that it? A. No; X would not say that. But if Dr. Dernberg says to me that a man of Mr. Sieleken’s standing and reputation wants to give a loan of $750,000, those two men were entirely good for me. Q. But, as a matter of fact, you did not look behind Dr. Dernberg, did you? You never did have a word of writing from Mr. Sielcken about it, did you? A. No; and I did not expect it. ~ * S: Q. You really hadn’t a scrap of writing from Mr. Sielcken, or a wireless telegram, had yon? A. Nothing. Q. You hadn’t a cablegram, had you? A. No; hut X have to add that that was nothing unusual which could liave worried me at all. * ® * Q. This Rum el y matter was a case where you were spending the money of somebody in Germany, was it not? A. Yes. Q. And the cables were still open, were they not? A. No. Q. But the wireless was open, wasn’t it? A. Yes; to a certain extent, all under the control of the American government. Q. But you were sending cipher messages weren’t you? A. Yes; but the capacity of the two stations was limited. * * * Q. But did not Dr. Dernberg take time to eomnnmicato with Mr. Sielcken? X think I asked you that, and you said, ‘No.’ Is that correct? A. If you asked mo that, I must have said, ‘X don’t know.’ Q. But you could have communicated with him by wireless, had you so desired, of course? A. I think it would have been possible. Q. Was this $750,000 your own money? A. It was legally; yes. It was mine as a banker, but I was responsible for it to Mr. Sielcken. Q. Oil, had he deposited the money with you? A. No; it was practically my own money. I gave him a credit, though, as a banker does. 1 did that on the word of Dr. Dernberg, because Sielcken wanted to make the loan. Q. That is to say, with no knowledge on your part as to whether Dr. Dernberg had, communicated with Mr. Sielcken or not, you spent $750,000 for him? A. Yes. Q. And without any knowledge as to whether or not Dr. Dernberg was in communication with Mr. Sielcken? A. Yes. Q. And that money was put into a newspaper, and the only security which yoti got for the loan was the stock of that newspaper? A. Yes; or I did not get it. He pledged the stock. Q. So that you lent $750,000, representing a principal, with absolutely no security, excepting the success of the enterprise itself. A. The newspaper; yes.”
In this connection it is observed that the general manager of the Tuckerton radio station in 1914, 1915, 1916, and 1917 testified that the station was, during the period named, in direct communication with the station near Hanover, and that our wireless station was open for business during the period mentioned, and received, and transmitted freely messages to Germany. “The wireless service was open to everybody,” he said. “You could transmit freely up to February, 1917.” The testimony discloses that Albert knew little about Sielcken, except that he was “a kind of a coffee merchant,” and was at that time in Germany. He also knew of his firm in New York.
“Q. Did you know the address of the firm in New York? A. I don’t know the number. Q. Did you ever go there? A. No; never. Q. Didn’t ho have some representative in New’ York? A. Certainly. Q. Did you ever discuss this purchase with any of them? A. Certainly not.”
Again:
“Q. And the accounts of the Evening Mail were kept by you in the government ledger, were they not? A. No; they wore kept in a separate account,*544 which, according to my recollection, was the Perez account. Q. What was the meaning of ‘Perez’ ? A. I don’t remember. I have thought that over very often, but I cannot remember why I used the name. * * * Q. Who was it that suggested the name ‘Perez’? A. I don’t remember that. Q. Did the words Evening Mail appear in that account? A. No; I think they did not appear. I don’t remember them appearing anywhere in that. Q. Did the words Evening Mail appear in that account? A. There appeared only Perez. Q. Did the name of Herman Sielcken anywhere appear in that account, sir? A. No; the name Perez was chosen in order to cover the name of Sielcken. Q. The name Perez was used, so that any one looking at that account would not know whose account it was, then? A. Yes; exactly. Q. And the word Perez was used to cover Sieleken’s name? A. Yes.”
After Albert had loaned $750,000 to Rumely for the purchase of the Mail, he had from time to time loaned additional amounts to him in order to keep the paper running. The following is an excerpt from Albert’s testimony on this point:
“Q. As a matter of fact, in this case there was advanced from funds under your control, for the purpose of financing the Evening Mail, in all a total of $1,451,600? A. Was it as high as that? I should have thought perhaps $1,300,000; hut that is immaterial. Q. It amounts, roughly, to a little less than a million and a half dollars — rather more, at least, than $1,300,000. So that the first advance of $750,000 was, in fact, only about half the money which was actually diverted to this enterprise by you — speaking roughly, now. A. After looking at these figures to-day, I see there is no doubt about it. Q. So that, while the $750,000 was not only the first, but the largest, single step that you took, Dr. Albert, the fact was that afterwards a sum nearly as large was put into that enterprise, now wasn’t it? A. I never realized it was nearly as much, but I knew it was a very high sum. Q. That is a pretty substantial sum to me, Doctor? A. Yes. Q. And a sum large, enough to be worthy of rather serious consideration? A. Yes. Q. Especially' to one who is representing other people, whether a government or private individuals. A. Yes. Q. Do you know why it was that no note was taken for those subsequent advances until on January 1, 1917, a note for $551,000 was taken from Dr. Rumely? Do you know why that was? A. I don’t know why; I am even surprised myself. According to my recollection, we should have taken a note every time we advanced money to the people. Q. The amount of $551,000 includes the transaction carried through the name of Stevenson, doesn’t it? A. Yes. Q. So you cannot help us with any explanation of the fact that, although those very large advances were being made through Mr. Kaufmann and Dr. Rumely and yourself, no notes or documents representing any securities to' the persons who advanced the money were taken? A. If there were no notes, I cannot give any explanation for it.”
And this also:
“Q. You know that the money which you actually paid over was not money which had come from Sielcken, don’t you? A. Yes. Q. Then, Doctor, to get this perfectly clear, the money which you gave into the hands of Dr. Rumely, that particular money, was not sent to the United States by Sielcken, and did not come from any fund of Sielcken’s in the United States? A. No. Q. And the most that Dr. Demberg’s statement could convey to you was that Dernberg had stated that Sielcken would reimburse the fund from which you took the money; that is all you understood? A. What I understood was that I was authorized to pay for his account. Q. Pay for Sielcken and he would reimburse it? A. Yes. Q. Di'd Mr. Sielcken at any time- to your knowledge ever pay over to any person any money to replace the money which you paid to Rumely? A. I know nothing about that. Q. Did any person, acting in behalf of Mr. Sielcken, ever pay to any person, as far as you know, any money for the purpose of replacing the money which you paid to Rumely? A. I know nothing about it. Q. Have you ever made any inquiry*545 of anybody as to whether Mr. Sieleken, or bis estate, has ever made any payment to anybody for the purpose of reimbursing the money which yon paid out? A. In the United States I could not, and in Germany I did not.”
And after the United States entered the war against Germany, and it became necessary for Albert to return to his own country, before he sailed from the United States, he left, according to his own admission, $150,000 in the hands of Kaufmann, to be loaned to Rumely, if the latter needed the money. The testimony about this follows:
“Q. Dr. Albert, shortly before you sailed from the United States, there was $150,000 transmitted to Mr. Kaufmann, to be loaned to Dr. Kuinely, was there not? A. Yes. Q. State, if you please, what connection you had with that transaction. A. Before I sailed from the United States, I said to Mr. Kaufmann, ‘llore are $150,000, which you credit to the account of Sieleken, and from this money you pay any further loans which may be necessary to Kuinely. It means, if Kuinely comes again for loans you pay it out of this $150,000.’ Q. Do you remember whether you personally handed the money to Mr. Kaufmann or not? A. No; I don’t recollect, but 1 don’t think so, because 1 never handed money to people myself. Q. Do you know in what form the money was transmitted to Mr. Kaufmann? A. Well I think we stuck to the habit of handing it over in cash, but maybe X paid it in a check. I don’t remember.”
The defendant Kaufmann was Albert’s legal adviser in respect to all matters relating to the Mailj and he states that he left to him all legal details. In all cases Albert states that he. “gave” all the money paid to Rumely to Kaufmann, who was to turn it over to Rumely as a loan.
The private secretary of Dr. Dernberg, who was his secretary during his stay in the United States, and who was born in Germany, testified as follows:
“Q. Prom the time you entered Dr. Demberg’s employ in September, 1014, to the time he left the United States on June 12, 1015, did you ever hear the name of Herman Sieleken or Mrs. Busch in the office? A. Never.
“Mr. Baldwin; I object to that as being no testimony at all.
“The Court: Well, it is negative; but, for what it is worth, I think it is competent.
“Mr. Baldwin: I except.
“Tlie Witness: I was Dr. Demberg’s private secretary; I had access to Ilia files and papers. Q. Did you ever see the name of Herman Sieleken, or Mrs. Busch, in any of the flies or papers in his office? A. Never.”
One Claussen, who was employed in the German press bureau heretofore mentioned in connection with tlie activities of Albert, and whose duties consisted in sending out news items from the German side to the American papers, testified that this news was furnished gratuitously by the papers. He was an employee of the Hamburg-American Tine, and was asked by its directors to aid Dr. Albert and Dr. Dern-berg in getting out the German side. When the Hamburg-American Line reduced salaries, they reduced his salary with the rest, but assured him that an additional allowance would be made him; and he testified that this additional allowance was paid him by Dr. Albert.
We have given an incomplete statement of theoevidence which we find in the voluminous record, but it serves at least to indicate the character of the evidence which was laid before the jury in this case.
The objection to the fourth count is the failure to charge that defendants conspired that the defendant Rumely should willfully fail, neglect, and omit to report to the Alien Property Custodian; whereas, the count charges conspiracy to commit an offense contrary to the provisions of' the Trading with the Enemy Act, and that act provides that an offense thereunder shall consist of the willful violations of its provisions. The objection to the fifth count is similar; the word “willfully” not having been used in describing the conspiracy therein charged.
The fourth count of the indictment, after reciting various matters not necessary now to refer to, and that Edward A. Rumely, at the times specified, then and there being within the United States, was indebted in the sum of $1,301,700 to an enemy of the United States, the Imperial German government, and that the three defendants, each well knowing all the matters and things alleged—
■‘unlawfully, willfully, knowingly, feloniously, and corruptly did conspire and agree with each other, and with divers other persons whose names are to the grand jurors unknown, to defraud the United States, by obstructing, impeding, hindering, and delaying the United States in, and preventing the United States from, seizing, capturing, receiving, holding, administering, assuming the control of and title to said indebtedness of the said Edward A. Rumely in the sum of $1,301,700 as aforesaid, to the said Imperial German government, an enemy of the United States as aforesaid.”
“That it was a part of said conspiracy and agreement that the defendants should conceal from the Alien Property Custodian the fact that the said Edward A. ■ Rumely was indebted as aforesaid to said Imperial German government; that it was a part of said conspiracy and agreement that the defendant S. Walter Kaufmann, on behalf of the firm of Hays, Kaufmann & Lindheim, should make and render to said Alien Property Custodian a misleading, false, and fraudulent report and statement with respect to said indebtedness; that it was a part of said conspiracy and agreement that the defendants Norvin R. Lindheim and Edward A. Rumely 'should make a misleading, false, and fraudulent report and statement tb said Alien Property Custodian with respect to said indebtedness; that it was a part of said conspiracy that the defendants should withhold and conceal from the United' States and from the Alien Property Custodian the true facts with respect to said indebtedness; and that it was further a part of said conspiracy and agreement that the defendants should obstruct, impede, hinder, delay, and prevent the transfer, assignment, and payment of the said indebtedness to the said Alien Property Custodian.”
The fifth count of the indictment, after retiting various matters not necessary now to consider, and that by virtue of the Trading with the Enemy Act passed by Congress and approved on October 6, 1917, it became and was the duty of every person in the United' States who was indebted in any way to an enemy of the United States to report the fact to the official of the government of the. United States known as the Alien Property,, Custodian, and setting forth the time within which such report had to be filed, and after stating that at the times specified the defendant Rumely, then and there being within the
“That on October 6, 1917, and continuously thereafter to and including December 20, 1917, the said Edward A. Kumely, S. Walter Kaufmann, and Norvin It. Dindheim, herein indicted and hereinafter called the defendants, and the said S. S. McClure Newspaper Corporation, which is not herein indicted, each well knowing all the matters and things hereinabove alleged, at the Southern district of Now York and within the jurisdiction of this court, unlawfully, knowingly, willfully, feloniously, and' corruptly did conspire and agree wit,h each other, and with divers other persons whose names are to the grand jurors unknown, to commit an offense against the United States; that is to say, the said persons did conspire and agree that the said Edward A. Itumeiy, being indebted as aforesaid to the said enemy, should fail, neglect, and omit to report to said Alien Property Custodian within the period proscribed by law as aforesaid, and the extension thereof by the President as hereinbefore set forth, the fact that he was indebted as aforesaid to said enemy.”
It becomes necessary, therefore, to consider whether the omission to charge that the defendants conspired that defendant Rumely should “willfully” fail, neglect, and omit to report to the Alien Property Custodian made the indictments invalid.
It is a rule of criminal pleading that the indictment must be free from all ambiguity, and leave no doubt in the mind o E the accused, and in that of the court, as to the exact offense intended to be charged. This is required, so that the accused may know what he is called upon to meet, and also that upon a plea of former acquittal or conviction it may appear with accuracy what the exact offense was to which the plea relates. Evans v. United States, 153 U. S. 584, 587, 14 Sup. Ct. 934, 38 L. Ed. 830. And see United States v. Hess, 124 U. S. 483, 487, 8 Sup. Ct. 571, 31 L. Ed. 516; Miller v. United States, 133 Fed. 337, 341, 66 C. C. A. 399; Fontana v. United States (C. C. A.) 262 Fed. 283, 286; Goldberg v. United States (C. C. A.) 277 Fed. 211, 215. And in Pettibone v. United States, 148 U. S. 197, 203, 13 Sup. Ct. 542, 545 (37 L. Ed. 419), the court, speaking through Chief Justice Fuller, stated that:
“A conspiracy is sufficiently described as a combination of two or more persons, by concerted action, to accomplish a criminal or unlawful purpose, or some purpose not in itself criminal or unlawful, by criminal or unlawful means.”
The general rule is that the term “willfully” cannot be omitted from an indictment when the term is part of a statutory definition. Wharton’s Criminal Procedure (10th Ed.) vol. 1, §'§ 285 and 318. But it has been held that, where the facts alleged necessarily import willfulness, the failure to use the word “willfully” is not fatal to the indictment. Howenstine v. United States (C. C. A.) 263 Fed. 1; Holsman v. United States, 248 Fed. 193, 160 C. C. A. 271; Nickell v. United States, 161 Fed. 702, 88 C. C. A. 562; Van Gesner v. United States, 153 Fed. 46, 53, 82 C. C. A. 180. And in Williamson v. United States, 207 U. S. 447, 28 Sup. Ct. 171, 52 L. Ed. 278, it is said:
“In a charge of conspiracy, the conspiracy is the gist of the crime, and certainty to a common intent, sufficient to identify the offense which the de*548 fendants conspired to commit, is all tliat is requisite in stating the object of the conspiracy.”
And see, to the same effect, Crawford v. United States, 212 U. S. 183, 29 Sup. Ct. 260, 53 L. Ed. 465, 15 Ann. Cas. 392; Goldberg v. United States (C. C. A.) 277 Fed. 211, 213; Anderson v. United States, 260 Fed. 557, 171 C. C. A. 341; Gould v. United States, 205 Fed. 883, 126 C. C. A. 1; Brooks v. United States, 146 Fed. 223, 76 C. C. A. 581; United States v. Claflin, 25 Fed. Cas. 433, 435.
We'fully recognize that, in the interest of the orderly procedure of the courts and for the adequate protection of the rights of a person accused of crime, an indictment must be declared invalid. unless it clearly and exactly sets forth the crime charged. But we are bound to say that, after careful reading of the fourth and fifth counts of the indictment, we áre unable to see but that they fulfill the tests prescribed by the courts in the cases cited, and'that they are sufficient to support the convictions.
It is objected that the fifth count is insufficient, because it failed to allege that the debt “due” to the enemy of the United States, and which it was necessary to report to the Alien Property Custodian, had become “due.” It is said that section 7(a) of the Trading with the Enemy Act did not require the report as to a debt until 30 days “after such debt shall become due.” That portion of the'act herein involved may be found in the margin.
The Century Dictionary defines “due” as follows:
“6. In law: (a) Owing, irrespective of whether the time of payment has arrived; as, money is said to be ‘due’ to creditors, although not yet payable; (b) Presently payable; already matured; as, a note is said to be ‘due’ on the third day of grace.”
In Webster’s Dictionary it is defined as follows:
“1. That which is owed; debt; that which one contracts to pay or do, to or for another; that which belongs or may be claimed as a right; whatever custom, law or morality requires to be done; a fee; a toll.”
It contains no reference to the maturity of the debt or thing owed. And in the Standard Dictionary it is defined as:
“That which is owed or rightfully required; a debt or obligation.”
In 1832 the Supreme Court in United States v. State Bank of North Carolina, 6 Pet. 29, 35, 8 L. Ed. 308, construing the Act of March 3, 1791, 1 Stat. 515, which provided that in cases of insolvency “the debt due to the United States shall first be paid,” held, in an opinion written by Mr. Justice Story, that the word “ ‘due’ is plainly used as synonymous with owing,” and included all debts, whether payable in prassenti or not. There are many cases in which the word in its primary and proper sense is held to mean simply owing. See Crocker-Woolworth National Bank v. Carle, 133 Cal. 409, 411, 65 Pac. 951; Sather Banking Co. v. Briggs Co., 138 Cal. 724, 732, 72 Pac. 352; Barber Asphalt Paving Co. v. Woodbury County, 137 Iowa, 287, 289, 114 N. W. 1044; Tally v. Brown, 146 Iowa, 361, 125 N. W. 248, 140 Am. St. Rep. 282; Pope v. Matthews, 125 Ga. 341, 347, 54 S. E. 152; Metropolitan Store & Saloon Fixture Co. v. Albrecht, 70 N. J. Law, 149, 56 Atl. 237; Sand-Blast File Sharpening Co. v. Parsons, 54 Conn. 310, 7 Atl. 716. The word “due” is sometimes used to express the idea of the maturity of the debt. This is to use the word in its secondary meaning. That the interpretation we have placed upon the word “due” in the provision of the act in question clearly appears from the words which immediately follow that provision. Those words are:
“The President may also require a similar report of all property so held, * * * and of all debts so owed to any person now defined as an enemy or ally of enemy. * * * ”
It is evident “due” and “owed” have been used as equivalents.
Overt Acts. — -Each of the five counts in the indictment alleged the commission of overt acts. There are five such acts set forth, and they are the same in each of the counts. The acts charged are:
(1) That the defendant Rumely made the report to the Alien Property Custodian.
(3) That he wrote and signed a certain other letter, explanatory of the report, which he also caused to be delivered to the Alien Property Custodian.
(4) That the defendant Kaufmann made a report and sent it to the Alien Property Custodian.
(5) That the defendant Lindheim assisted in making the report that Rumely made.
At common law no overt act is necessary to constitute the offense of conspiracy. O’Connell v. Reg., 11 Cl. & F. 155; United States v. Lancaster, 44 Fed. 896, 10 L. R. A. 333; United States v. Watson (D. C.) 17 Fed. 145; People v. Mather, 4 Wend. (N. Y.) 229, 21 Am. Dec. 122. But under the federal statutes some overt act in pursuance of the conspiracy is a necessary element of any offense against the United States. Pettibone v. United States, 148 U. S. 197, 13 Sup. Ct. 542, 37 L. Ed. 419; United States v. Hirsch, 100 U. S. 33, 25 L. Ed. 539. But in the case now under consideration the overt acts are not only charged in the indictment, but it is conceded that the acts were done.
It is assigned for error, however, that the averments in the fourth and fifth counts, as to the overt acts, are insufficient. But the assignments do not point out in what respect the insufficiency consists. An overt act is one which manifests the intention of the doer to commit the offense. In Gruher v. United States, 255 Fed. 474, 477, 166 C. C. A. 550, this court took occasion to say that there is no rule of law which requires an overt act to be an unlawful act. “It may be,” it was there said, “in itself a perfectly lawful act, which becomes unlawful only when it is committed ‘in pursuances of and to effect the object’ of the conspiracy. It was not necessary to allege in what manner the overt act would tend to effect the object of the conspiracy.” In the case now before the court the fourth and fifth counts charge that the overt acts were done “to effect the object of said conspiracy and in pursuance thereof.” And that is all-sufficient. Frohwerk v. United States, 249 U. S. 204, 209, 39 Sup. Ct. 249, 63 L. Ed. 561.
Evidence. — It was necessary in this case for the government to show that the $750,000 that went into the purchase of the Evening Mail, or the $700,000 more or less that subsequently went into the financing of it after its purchase was the money in whole or in part of the Imperial German government. It was also necessary for the government to show that the defendants, or at least two of them, knew that the money, or some of it was the money of that government. All of the evidence introduced in the case was for the purpose of establishing one or the other of these two issues. It is conceded that the money which purchased the paper was paid to Rumely, either directly by Dr. Albert or indirectly by Albert’s subordinates, acting by his direction. A great deal of evidence was introduced, and, as already stated, there are no less than 206 assignments'of error relating to the improper admission or rejection of evidence. Many of them are of little or no importance and have been practically abandoned on this appeal. It is
It is assigned for error that the court received in evidence books of account of banks and trust companies and of Dr. Albert, and that entries from such books of account were read from or testified to by witnesses. There is no doubt that books of account, kept in the usual and regular course of business, may be admitted in evidence when supplemented by the oath of the party who kept them. Bates v. Preble, 151 U. S. 149, 151, 14 Sup. Ct. 277, 38 L. Ed. 106; Insurance Co. v. Weide, 14 Wall. 375, 20 L. Ed. 894; Insurance Co. v. Weide, 9 Wall. 677, 681, 19 L. Ed. 810; Chaffee & Co. v. United States, 18 Wall. 516, 541, 21 L. Ed. 908.
11 is assigned for error that the court permitted evidence to he received showing the defendant Rmnely’s pro-German sympathies and activities in 1914 and 1915, and his presence at certain conferences which appear to have been held at stated times at 1123 Broadway, in New York City, at which conferences Dr. Albert, Dr. Dernberg, and other prominent Germans were present. The admissibility of circumstantial evidence in criminal cases is so well established that it is not necessary to cite authority in its support. If such evidence were to be excluded, few convictions could he obtained. Commonwealth v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711; Pittman v. State, 51 Fla. 94, 41 South. 385, 8 L. R. A. (N. S.) 509.
Circumstantial evidence is that evidence which tends to prove a disputed fact, by proof of other facts which have a legitimate tendency to lead the mind to a conclusion that the fact exists which is sought to be established. Bouvier’s Dictionary. It is legal evidence, and a jury must act upon it as if it were direct, when it is satisfactory beyond a reasonable doubt. 1 Grecnleaf, Evid. § 13. In Commonwealth v. Jeffries, 7 Allen, 548, 83 Am. Dec. 712, the Supreme Judicial Court of Massachusetts, in an opinion written by Chief Justice Bige-low, in considering the admissibility of circumstantial evidence and the difficulty of determining with precision the line which separates the limits of just and reasonable inference from those of mere conjecture or surmise, said:
“But as a safe, practical rule it may be laid down that in no case is evidence to be excluded of any fact or circumstance connected with the principal transaction, from which an inference as to the truth of a disputed fact can reasonably be made.” “This rule is especially applicable when it becomes necessary to show a particular intent in a party as an essential ingredient in the crime with which he is charged.”
And in Holmes v. Goldsmith, 147 U. S. 150, 164, 13 Sup. Ct. 288, 292 (37 L. Ed. 118) the Supreme Court declared its opinion respecting this kind of evidence as follows:
“As has been frequently said, great latitude is allowed in the reception of circumstantial evidence, the aid of which is constantly required, and therefore, where direct evidence of the fact is wanting, the more the jury can see of the surrounding facts and circumstances, the more correct their judgment is*552 likely to be. ‘Tbe competency of a collateral fact to be used as tbe basis of legitimate argument is not to be determined by tbe conclusiveness of tbe inferences it may afford in reference to tbe litigated fact. It is enough if these may tend, even in a slight degree, to elucidate tbe inquiry, or to assist, tbo.ugb remotely, to a determination probably founded in truth.’ Stevenson v. Stewart, 11 Penn. St. 307. Tbe modern tendency, both of legislation and of the decision of courts, is to give as wide a scope as possible to tbe investigation of facts. Courts of error are specially unwilling to reverse cases, because unimportant and possibly irrelevant testimony may have crept in, unless there is reason to think that practical injustice has been thereby caused.”
It is assigned as error that the court permitted to be received in evidence an original transcript of notes made by a stenographer employed by the Bureau of Investigation in the Department of Justice. The stenographer testified that he made the transcript from his notes, and that he made a correct transcript of the statements made by defendant Rindheim, which he had taken down in shorthand at an examination of Rindheim by the Department of Justice ahd transcribed a few days afterwards, although he had no recollection as to what Bindheim said, and the transcript did not refresh his recollection. He was shown to be an expert stenographer, and held two medals awarded by the National Shorthand Reporters’ Association in 1920, and that he had won the contest for the championship of the United States for speed reporting.
The original notes from which the transcript was made were not produced — the witness stating that the last he saw of them was in the Bureau of Investigation. A witness from the Department of Justice testified that she had searched the files of the Department of Justice and was not able to find them. She testified:
“We have all the Rumely file together, everything in connection with it, and I looked very carefully in it.”
We think that no error was committed in admitting the transcript in evidence. Insurance Co. v. Weide, 9 Wall. 677, 19 L. Ed. 810; Insurance Cos. v. Weide, 14 Wall. 375, 380, 20 L. Ed. 894; People v. Randazic, 194 N. Y. 147, 156, 87 N. E. 112.
The Charge. — The charge occupies 45 printed pages, and requests to charge and rulings thereon cover 38 additional pages. The District Judge, who charged the jury, is an able, learned, and experienced Judge. His instructions to the jury appear to have been very carefully prepared. They were certainly clear and illuminating. It is, of course, possible for any judge, however able and experienced he may be, to fall into error in instructing a jury. It is claimed that happened in this case in that portion of the charge which related to the knowledge or lack of knowledge on the part of the defendants, or any of them, that at the time they made their report to the Alien Property Custodian they knew some of the money that went into the purchase of the Evening Mail was money of the Imperial German government. After charging the jury that it was necessary for the prosecution, not only to establish the fact that the money that went into the Mail was the' money of the German government, but in addition thereto that at that time the defendants, or two of them, knew that this money belonged to the German government, the court instructed the jury very fully
“Mr. Steuer: We are very much, worried about something this morning, your honor. I am going to ask your permission to take an exception to your charge of imputed knowledge. Everybody seems to think there is no such thing as imputed knowledge in a criminal case.
“The Court: I can only do that with consent. The law is you must take exception before the jury retires. I do not think it has any bearing on the case. I do not see how I can give you an exception, after the jury retires, except by consent of counsel all around. * * *
“Mr. Steuer: Have the record show this: After the jury had retired, and before the jury reported any verdict to the court, the defendants respectfully request the court to note the following exceptions to the court’s charge:
“To that portion of the court’s charge in which it defined knowledge, and particularly in which it stated that knowledge may be of two kinds, actual and imputed, and then proceeded to define imputed knowledge, and instructed the jury that if they found imputed knowledge, or the facts which would impute knowledge in the way that the court’s, charge defined it, then the jury would have the right to find that there was actual knowledge, and that the law would impute knowledge to the defendants, although the defendants did not have knowledge in fact.”
It is objected that by this charge the issue of knowledge, whether established by direct proof or by inference to be drawn from facts and
The defendants Kaufmann and Lindheim had testified that it was their belief throughout the whole transaction that Sielcken was the principal in the matter of the loans to Rumely. There was no direct proof that the defendants Kaufmann and Ljndheim knew that the Ger
In Phelps v. Mayer, 15 How. 160, 14 L. Ed. 643, decided in 1853, Chief Justice Taney, commenting on the fact that no exceptions were taken to the charge before the jury retired, said:
“We think this objection cannot be overcome.”
After saying that the rule requiring an exception to be taken to the charge before the jury retires was not a mere formal or technical one, he declared:
“It was introduced and is adhered to for purposes of justice; for, if it is brought to the'attention of the court that one of the parties excepts to his opinion, he has an opportunity of reconsidering or explaining it more fully to the jury.”
And in Star Co. v. Madden, 188 Fed. 910, 110 C. C. A. 652, this court applied the same rule and declared that it had been repeatedly applied in this circuit. See Miller & Lux v. Petrocelli, 236 Fed. 846, 150 C. C. A. 108; Alverson v. Oregon-Washington Railroad & Navigation Company, 236 Fed. 331, 149 C. C. A. 463; Beatson Copper Co. v. Pedrin, 217 Fed. 43, 133 C. C. A. 29; Copper River & N. W. Ry. Co. v. Heney, 211 Fed. 459, 128 C. C. A. 131; Arizona & New Mexico Ry. Co. v. Clark, 207 Fed. 817, 125 C. C. A. 305; Mountain Copper Co. v. Van Buren, 133 Fed. 1, 66 C. C. A. 151; Yates v. United States, 90 Fed. 57, 32 C. C. A. 507; Western Union Telegraph Co. v. Baker, 85 Fed. 690, 29 C. C. A. 392; Merchants’ Exchange Bank v. McGraw, 76 Fed. 930, 22 C. C. A. 622; Johnson v. Garber, 73 Fed. 523, 19 C. C. A. 556; Railway Co. v. Spencer, 71 Fed. 93, 18 C. C. A. 114; Stone v. United States, 64 Fed. 668, 12 C. C. A. 451; Park Bros. & Co. v. Bushnell, 60 Fed. 583, 9 C. C. A. 138; Sutherland v. Round, 57 Fed. 467, 6 C. C. A. 428; Bracken v. Railway Co., 56 Fed. 447, 5 C. C. A. 548; Price v. Pankhurst, 53 Fed. 312, 314, 3 C. C. A. 551. The cases show that the courts regard a strict enforcement of the rule essential to the proper administration of justice.
In 8 Encyc. of Pleading & Practice, 264, it is stated:
“Exceptions to instructions given should be taken at the close of the charge and before the jury retire, otherwise they will be too late.”
And in Zoline’s Federal Criminal Law & Procedure, vol. 1, sec. 446 it is said:
“The rule in relation to exceptions to instructions is that the matter excepted to shall be so brought to the attention of the court before the retirement of the jury as to enable the judge to correct his instructions.”
The law, upon proof of sufficient facts, will presume that a jperson has information equivalent in its legal effects to actual knowl
“Within the meaning of the rules, notice may, I think, be correctly defined as the information concerning a fact actually communicated to a party by an authorized person, or actually derived by him from a proper source, or else presumed by law to have been acquired by him, which information is regarded! as equivalent in its legal effects to full knowledge of the fact, and to which the law attributes the same consequences as would be imputed to knowledge.”
Exhibits Sent to Jury. — It appears that after the charge to the jury, but before the jury retired, the counsel for the government asked:
“Will your honor order that the jury may have such of the exhibits as they may desire?”
To which the court replied:
“Yes, gentlemen; if you have occasion to want any of the exhibits, you, may have them. X do not suppose you want all of them at the outset; they are quite numerous.”
Thereupon the counsel for Rumely said:
“With respect to the exhibits put in by Dr. Itumoly, which have been lost, we have an agrceihent with counsel that they can be substituted by copies.”
Whereupon the court stated:
“Unfortunately Dr. Eumcly’s exhibits were lost and, if you have occasion to want them, you will get the copies, and not the originals.”
The jury then retired. The next afternoon (Saturday) they returned their verdict, having been out nearly 24 hours. On the following Monday morning, and just before sentence was pronounced, counsel for the defendants moved to set the verdict aside, basing the motion upon the following, among other, grounds:
“ * * * That during their deliberations, after the court had charged the jury and they had withdrawn to consider of their verdict, the jury requested ^nd obtained the stenographic record of a portion of the testimony in the casé, and read and considered such testimony in their jury room, in the absence of the court and of the defendants.”
It developed that in the course of the jury’s deliberations they sent to the clerk for certain exhibits, and that the clerk sent them to the jury, including among them a deposition of Dr. Albert’s which had been received from Switzerland. Portions of that deposition had been admitted in evidence, and portions had been excluded. But the whole deposition was sent to the jury. It is admitted that it had not been marked as an exhibit, but was a file paper. In reply to a qúestion from the court, the clerk stated that whatever he sent to the jury had been sent with the knowledge and consent of counsel on both sides. The United States attorney stated that he had no knowledge with respect to the deposition going before the jury, and that the matter had not
We accept denials of knowledge as truthful, but no ohe challenged the truth of the clerk’s positive statement, which the court below particularly inquired into and accepted. The court then overruled the motion, and in doing so said: “I do it on the clerk’s statement.” In view of the fact that each counsel who denied having consented to the sending in of the papers to the jury simply spoke for himself, and no one undertook’to say that none of the counsel associated with him had consented, the clerk’s statement remains uncontradicted that nothing was sent in without the knowledge and consent of counsel on both sides. There were present at the time this colloquy took place other counsel representing each defendant, who said nothing although they had ample opportunity to speak. It cannot be doubted that, if the con-senf had not been given, as the clerk unequivocally assérted, these counsel would not have remained silent, but would have strenuously denied it. If the papers had been sent to the jury without the consent of counsel, it might be claimed that the verdict was vitiated by the error com-, mitted. But there can be no doubt that counsel might consent to waive their objections to evidence offered and excluded, and after consenting to have the papers go to the jury they cannot now have the verdict set aside on that account. It is the duty of counsel, as well as of the court, to ascertain what papers are delivered to the jury. State v. Tucker, 75 Conn. 201, 203, 52 Atl. 741. 2 Thompson on Trials, § 2591. The defendants’ counsel knew ahout Dr. Albert’s deposition, and that part of it had been excluded from evidence, and the}' should have directed the court’s attention to the excluded portions and asked to have them sealed up, or the jury instructed not to look at them, when the court told the jury that, if they had occasion to want any of the exhibits, they might have them.
It is not unusual in a criminal case to permit papers which are in evidence to be taken by the jury on their retirement. Johnson v. Commonwealth, 102 Va. 927, 46 S. E. 789; Burton v. State, 115 Ala. 1, 22 South. 585; State v. Tucker, 75 Conn. 201, 52 Atl. 741; State v. Lewis, 69 W. Va. 472, 72 S. E. 475, Ann. Cas. 1913A, 1203; State v. Taylor, 36 Kan. 329, 13 Pac. 550; State v. Raymond, 53 N. J. Law, 260, 21 Atl. 328; State v. Shaw, 73 Vt. 149, 50 Atl. 863; Davis v. State, 91 Ga. 167, 17 S. E. 292; Grayson v. State, 40 Tex. Cr. R. 573, 51 S. W. 246; Russell v. State, 66 Neb. 497, 92 N. W. 751; State v. Williams, 34 La. Ann. 959; State v. Tompkins, 71 Mo. 613; State v. Gibson, 29 Iowa, 295; Howard v. People, 27 Colo. 396, 61 Pac. 595; Bersch v. State, 13 Ind. 434, 74 Am. Dec. 263; Cooke v. People, 134 Ill. App. 41, affirmed 231 Ill. 9, 82 N. E. 863; McCandless v. Commonwealth,
“Writings or books which are not under seal cannot be delivered to the jurors, without tho assent of both parties; but being delivered by the court without the assent of the parties, neither of the parties can avoid the verdict, in regard they were given in evidence before.”
This means to imply that as respects writings under seal the assent of the parties would not be necessary; but as respects writings not under seal the court, with the consent of the parties, might allow them to be delivered to the jury. See State v. Raymond, 53 N. J. Law, 260, 21 Atl. 328; State v. Stover, 64 W. Va. 668, 63 S. E. 315.
In Winters v. United States, 201 Fed. 845, 120 C. C. A. 175, the Circuit Court of Appeals for the Eighth Circuit held that the defendant liad waived any right to object to certain letters which had been introduced in evidence, but not read, when the trial judge stated that he would permit them to be taken by the jury to their room when they retired to be read to them. This course was pursued, the defendant making no objection. “This,” said the Court of Appeals, “was a matter which the defendant could waive.” It was added:
“It would be better practice, however, to have the letters either read to the jury, or given to the jury, and each one of the jurors required to read them, while the case was on trial, rather than to have them take them, to the jury room, to be there first read.”
In 2 Thompson on Trials, '§ 2575, the law is stated as follows:
“The modern practice is believed to be to send to the jury room all documents and papers, other than depositions, which have been received in evidence. In the absence of prohibitory legislation, it is c-ertainly in the discretion of the judge to permit such papers to be taken out by the jury; in some states it is provided by statute that it may be done; and ordinarily a verdict will not be set. aside because it has been done, unless prejudice appears to have resulted from it.”
And in section 2578 the same writer, referring to the exclusion of depositions, says:
“The rule which thus excludes depositions from the jury room is not an absolute one; it yields in most opinions to the discretion of the trial court, and consequently new trials are generally refused on this ground, even where the deposition is procured by the jury without the authority of the court, and certainly where it does not appear that it got into their hands against the objection, or without the knowledge of the complaining party.”
And in section 2579 it is also said:
“But, where the deposition contains portions which were excluded, the same presumption arises as in other cases where incompetent testimony has been admitted, namely, that it influenced the verdict improperly; and unless this presumption is repelled by wbat elsewhere appears in the record, an appellate court will reverse the judgment. But it is the duty of counsel to see that only the proper papers are taken by the jury when they retire, and, in the absence of fraud or artifice, a verdict will not be disturbed because incompetent evidence may, through the neglect of counsel whose duty it was to prevent it, have fallen into the hands of the jury.”
Judgment affirmed.
“Any person in the United States who bolds or bas or shall hold or have custody or control of any property beneficial or otherwise, alone or jointly with others, of, for, or on behalf of an enemy or ally of enemy or of any person whom he may have reasonable cause to believe to be an enemy or ally of enemy and any person in the United States who is or shall be indebted in any way to an enemy or ally of or to any person whom he may have reasonable cause to believe to be an enemy or ally of enemy, shall, with such exceptions and under such rules and regulations as the President shall prescribe, and within thirty days 'after the passage of this Act, or within thirty days after such property shall come within his custody or control, or after such debt shall become due, report the fact to the alien property custodian by written statement under oath containing such particulars as said custodian shall require. The President may also require a similar report of all property so held, of, for, or on behalf of, and of all debts so owed to, any person now defined as an enemy or ally of enemy, on February third nineteen hundred and seventeen. * * * 40 St. ch. 106. See. 7-a, p. 416 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § Silbad).
“Now, that makes it necessary to define what ‘knowledge’ is. in law; and so far as actual knowledge is concerned, of wrarse, it is no different in law than in fact. You all know what actual knowledge is, and the law puts no different meaning on it. Whatever is in a man’s mind at the time is within his knowledge. But there is another kind of knowledge that sometimes obtains at law, that is a. little different from actual knowledge, and that is what is called imputed knowledge — where knowledge is imputed to a man. Now, that can only happen in this way: If knowledge is required to make out an offense, then the man must either have actual knowledge in Ms own mind, or he must bo in such a position as that he believes the fact that he is charged with knowledge of, and purposely refrains from obtaining that knowledge when the knowledge is at hand, if he would make the effort to obtain it.
“In oiher words, when he shuts his eyes and says, ‘I do not want to know, because I do not want to be fastened with knowledge,’ that, the law says, is the equivalent of actual knowledge. If a man is only prevented from knowing by his willful act, in abstaining from finding out, because he does not w&nt to be fastened with knowledge, then the law says he has knowledge, though in fact he has not, being only prevented from having it by his desire not to acquire it. That does not mean, however, that a man has knowledge who has suspicions, and who negligently fails to make inquiry as to the facts he suspects, to see whether they are true or not, when that is done through a negligent omission, and not a willful intention to keep from knowing the facts. The law does not impute knowledge to anybody, even though he may bo suspicious, and negligently falls to follow out those suspicions; by inquiry to determine the truth. In other words, where it is due to negligence, and not to a willful purpose not to acquire the knowledge, it does not amount to knowledge, because knowledge, in order to fasten a crime on a man, must be either actual knowledge or imputed knowledge of the crime as I have mentioned to you.
“Now. tlie question is, then, whether these defendants, or two of them, had knowledge, either actual or imputed of the character of this money, if you find it to have been money of the Imperial German government.
“Now, knowledge or the want of knowledge is just as much a question of fact, as I see it, as whether the money was Imperial German government money or not, in fact. Therefore it is also a question of fact Cor your determination, in which I can only be of a little assistance to you, and that in the way of telling you the method of proof, rather than anything with relation to the different facts that may show knowledge, or its absence. Knowledge may be shown, of course, by direct testimony, like anything else. Even though it is in a man’s mind, it may be susceptible of proof by direct testimony. For instance, if a man should tell another man that he knew a fact, that other man could testify to his statement or admission, that would be direct proof of knowledge on bis part; or he might write a letter in which he might state that he knew a fact, which would be to the same effect; or he might'testify on the witness stand, in court, that he knew a fact to be true. That, however, is not the only way, and possibly not the most ordinary way, that knowledge may be proved, because knowledge, being a mental condition, undisclosed, cannot always be proven by direct or express testimony, and frequently must be proven by circumstances; that is, it may be inferred by the jury from circumstances that are offered in its proof, though there is no direct proof of its existence. For instance, one way of proving it is to show the connection or relationship that the party who is charged with knowledge has to the fact that it is desired to charge him with knowledge of — for instance, as being so intimately in contact with or so close to it that the jury could infer from the testimony that he could not have been in that close or intimate contact without inferring its existence, and even though there was no direct proof that he knew it, and in spite of Ms denial of knowledge of it.
“Now, the evidence that relates to the fact as to whether the money that went into the Evening Mail was money of the Imperial German government or not is the same as to each defendant, of course. There is no distinction .as to that. If 'the fact as to its German character be established as to one defendant, it will be established as to all defendants, because all the proof that relates to that fact equally affects all the defendants. Therefore, if you find the money to be German Imperial government money as to one defendant, you would naturally find it as to all the defendants.
“Now, that is not true, however, as to the question of knowledge — as to whether they had knowledge of it or not. The evidence with respect to each defendant in that regard is different in this case. For instance, the government contends that the Wilhelmifia transaction is evidence of knowledge, not only that it is evidence to show that the money that went into the Mail, part of it, was German Imperial government money, but also that it tends to fasten knowledge on the defendant Eindheim of its character. Now, of course, the relation of the three defendants to the Wilhelmina transaction is manifestly different in the case of each defendant. Dr. Rumely is not shown to have had any knowledge of or connection with it at all. Mr. Kaufmann says he has none, and there is, as I told you before, when we discussed that question, some evidence, that of Mr. Lemke, whom you will remember, which possibly connected Mr. Kaufmann with it, by showing that he was present at some of the conferences. That, however, Mr. Kaufmann denies. Now,
“And so as to the evidence that relates to the purchase of the Mail, and the transactions involved in the purchase of the Mail, as well as these connected with the advances of money subsequently, to finance the Mail. Those were conducted by Mr. Kaufmann. while Mr. Diiidheim seems to have had very little, if any, connection with that part of it; but Dr. Itumoly, of course, did have, because be was the recipient of loans in that matter, and Mr. Kaufmann, representing Dr. Albert, was the party through whom the money was paid, so that, so far as those transactions, if at all, relate to the question of knowledge of the German government character of the money, they would naturally have more effect on Dr. Rumely’s case and on Mr. Kaufmann’s case than they would on Mr. Dindheim’s case.
“These are mere illustrations. What T mean is, the evidence being before you as to each defendant on the question of knowledge, you are to consider it separately, based on the testimony that you may be of the opinion relates to the knowledge of that particular person. And, of course, you might find that one defendant only had knowledge, or that two of the defendants had knowledge of that, or that three of them had knowledge of it, or that none of then#, had knowledge of it.
“Now, if you find, of course, that no one of them had knowledge, that would result in an acquittal of all of them, even though you believed that it was money of the Imperial German government that bought and financed the Evening Mail. If none of them is shown, to your satisfaction, beyond a reasonable doubt, to have had knowledge of the character of the money, even though you believe that it was in fact the money of the Imperial German government, then the fact, if it be a fact, that it was money of the Imperial German government, would not make out a case for the government, and you would have to acquit the defendants; and so it would be, also, if but one of them had knowledge, but no more.
“If your finding be that one of the defendants had knowledge of its German government character, if that be the fact, but no more, then there could not be a conviction of any of the defendants, but they should all he acquitted, because of the fact that, a conspiracy is charged as the sole crime, and it requires at least two, under the United States law, to form a conspiracy. So if, of the three defendants two were ignorant, and one alone had knowledge, there could naturally be no conspiracy charges sustained. But if you are satisfied beyond a reasonable doubt that any two of the three defendants had! knowledge that the money that went into the purchase and the financing of the Evening Mail was money of the Imperial German government, then that would be enough; you would not be required to find that, all three of them had knowledge, if you find that any two of them had'it. That is, it would b« enough to find that any two defendants had knowledge of the German government character of that money, if that be the fact; and, of course, if all three of the defendants had knowledge of that fact, if it be a fact, and acted in concert, then it would make all three parties to the unlawful conspiracy.”
