267 F. 819 | 2d Cir. | 1920
The defendant Welsh was convicted of violating section 3, subd. (c), of the Trading with the Enemy Act of October 6, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115%b[c]). The indictment contained two counts, the first charging him with willfully attempting to bring into the United States from a foreign country, to wit, England, a certain tangible form of communication, to wit, a certain letter, and the second count charging him with willfully bringing in the same letter. April 5, 1918, the case was tried and the defendant convicted upon both counts and sentenced to imprisonment for a year and a day in the United States penitentiary at Atlanta, Ga.
“It shall 'be unlawful * * * (c) for any person (other than a person in the service of the United States government or of the government of any nation, except that of an enemy or ally of enemy nation, and other than such persons or classes of persons as may be exempted hereunder by the President or by such person as he may direct), to send, or take out of, or bring into, or attempt to send, or take out of, or bring into the United States, any letter or other writing or tangible form of communication, except in the regular course of the mail; and it shall be unlawful for any person to send, take, or transmit, or attempt to send, take, or transmit out of the United States, any letter or other writing, book, map, plan, or other paper, picture, or any telegram, cablegram, or wireless message, or other form of communication intended for or to be delivered, directly or indirectly, to an enemy or ally of enemy: Provided, however, that any person may send, take, or transmit out of the United States anything herein forbidden if he shall first submit the same to the President, or to such oflieer as the President may direct, and shall obtain the license or consent of the President, under such rules and regulations, and with such exemptions, as shall be prescribed by the President.”
“Whoever shall willfully violate any of the provisions of this act * * * shall, upon conviction be fined not more than $10,000, or, if a natural person, imprisoned for not more than ten years, or both.”
December 19, 1917, the defendant demurred to the indictment on the ground that it charged no crime under the act, because it did not allege that the letter in question was “intended for or to be delivered directly or indirectly to an enemy or ally of enemy.” Judge Mayer correctly overruled the demurrer, holding that the section covers two offenses: First, the bringing in or sending out of the United States
such a letter in any other way than “in the regular course of mail”; and, second, the sending out of the United States in any way a communication intended for an enemy or ally of enemy. The description of each of these offenses is prefaced by the words “It shall be unlawful,” indicating that they are distinct. The first covers any letter or tangible communication whatever, and the second only such communications as are intended for an enemy or ally of enemy.
The judgment is affirmed.
Comp. St. § 10509.