44

See also notes to 2238, ante. Constitutionality. The espionage act is constitutional. Sugarmann v. U. S. (1919), 249 U. S. 182, affirming (1917) 245 Fed. 604. The first amendment, while prohibiting legislation against free speech as such, was not intended to give immunity to every possible use of language. Frohwerk v. U. S. (1919), 249 U. S. 204.

Congress may punish under the ordinary rules of prosecution and without trenching upon the constitutional limitation as to treason, acts which are of a seditious nature and tend toward treason, but which are not of the direct character and superdangerous degree which would meet the constitutional test and make them treason. Wimmer v. U. S. (C. C. A. 1920), 264 Fed. 11; certiorari denied, 253 U. S. 494. Thus the testimony of one witness, without corroboration, is sufficient to sustain a con. viction under this section. Bold v. U. S. (C. C. A. 1920), 265 Fed. 581.

That this section makes criminal in time of war statements or utterances which in time of peace might be within the constitutional rights of a citizen does not render it unconstitutional. Hickson v. U. S. (C. C. A. 1919), 258 Fed. 867.

Construction of statute.-The section denounces three offenses: (1) The willful making or conveying of false reports while the United States is at war, with the intent to interfere with the operation or success of military or naval forces, etc.; (2) the attempt to cause insubordination, disloyalty, or mutiny in the military and naval forces of the United States; (3) the willful obstruction of the enlistment service of the United States, to the injury of the service or the United States-it being necessary to the consummation of the first two offenses that the United States be injured. Shidler v. U. S. (C. C. A. 1919), 257 Fed. 620.

Where all of these offenses are charged in one count of an indictment it is bad for duplicity. U. S. v. Dembowski (D. C. 1918), 252 Fed. 894.

An indictment charging a publisher with the commission of the second and third offenses set out in the above section need not allege that the statements in the

articles were false, whether such statements were false or not being immaterial. Balbas v. U. S. (C. C. A. 1919). 257 Fed. 17.

To constitute the offense it is sufficient that the accused did the acts charged, and that they were done willfully and with intent to cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces, and it is not necessary to show that they produced the effect intended. United States v. Kraft (C. C. A. 1918), 249 Fed. 919; certiorari denied, 247 U. S. 520.

The provision of sec. 6 of the selective draft act, ante 2238, making it an offense to aid another to evade the requirements of that act, and the provision of this section, making it an offense to willfully obstruct the recruiting or enlistment service, are in pari materia; the facts which constitute an offense under the first provision also constitute an offense under the second, and the first provision being specific, and the second general, the first governs where the facts bring the offense within it. Snitkin v. U. S. (C. C. A. 1920), 265 Fed. 489.

An acquittal on one count for violating the espionage act is not inconsistent with a conviction on another count, where the first count contained the element of intent to interfere with the success of the milltary service, which did not enter into the offense alleged in the second count. Hunkhouse v. U. S. (C. C. A. 1920), 266 Fed. 977.

Referring to obstructing the recruiting or enlistment service, the word "obstruct" is not used as an equivalent of "prevent," but rather of "to make difficult," and, to warrant conviction for a violation of the said act, it need not be shown that the defendant's words or acts actually prevented recruiting or enlistment. Deason v. United States (C. C. A. 1918), 254 Fed. 259; certiorari denied, 249 U. S. 607; Rhuberg v. U. S. (C. C. A. 1919), 255 Fed. 865; Reeder v. U. S. (C. C. A. 1919), 262 Fed. 36; certiorari denied, 252 U. S. 581; compare U. S. v. Hall (D. C. 1918), 248 Fed. 150.

An attempt to obstruct the enlistment and recruiting service, though unsuccessful,

is a violation of this section, Wessels v. U. S. (C. C. A. 1919), 262 Fed. 389; certiorari denied, 253 U. S. 485.

The provision above, making it an offense to "willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or promote the success of its enemies" in time of war, includes in the prohibition only statements of fact which the utterer knows to be false, and mere criticism or expression of opinion relating to acts of the Government, expressed either in language or by cartoons, however immoderate in tone or harmful in effect, is not within the purview of the statute, and publications containing such matter can not lawfully be excluded from the mails, under 3012, post (of the espionage act), as in violation of such provision. Masses Publication Co. v. Patten (D. C. 1917), 244 Fed. 535; (C. C. A. 1917) 245 Fed. 102.

Indictment. An indictment charging that defendants, in violation of the espionage act, conveyed false reports, with intent to interfere with the success of the military and naval forces of the United States, etc., but which did not specify the reports or to whom they were made, but merely followed the language of the statute, held insufficient, the statute itself being general. Foster v. U. S. (C. C. A. 1918), 253 Fed. 481; Collins v. U. S. (C. C. A. 1918), 253 Fed. 609.

An indictment charging that defendant in a named city and between certain months made seditious statements with the intent denounced by the espionage act, and thereby willfully, unlawfully, and knowingly attempted to cause insubordination, disloyalty, and refusal of duty in the mili tary and naval forces of the United States, is insufficient, when there was nothing to connect the acts of defendant directly or indirectly with such military or naval forces. Shilter v. U. S. (C. C. A. 1919), 257 Fed. 724.

An indictment charging that the accused made nine statements violating the espionage act, but not specifying the cir cumstances under which they were made, held insufficient. Fontana v. U. S. (C. C. A. 1919), 262 Fed. 283.

An indictment under this section need not allege the existence of a state of war, as the courts take judicial notice of that fact. Sonnenberg v. U. S. (C. C. A. 1920), 264 Fed. 327. And of the further fact that it has been conducted with certain other nations. Mead v. U. S. (C. C. A. 1919), 257 Fed. 639.

An indictment charging conspiracy to violate the selective service act by prevent

ing registration thereunder and by inducing desertion of those who had registered, is not duplicitous as charging two conspiracies, one of which could not by its nature originate until the other was terminated, since the intention to secure the desertion of those who had registered under the act and plans to effect that intention could have been formed before the day of regis tration. Haywood v. U. S. (C. C. A. 1920), 268 Fed. 795, 805.

Corroboration.-The evidence of one witness, without corroboration, is sufficient to sustain a conviction under this section. Bold v. U. S. (C. C. A. 1920), 265 Fed. 581.

Conspiracy. A conspiracy to violate the espionage act, provided one or more of the conspirators do any act to effect the object of the conspiracy, is none the less criminal, if thus attempted to be carried into effect, merely because the conspirators failed to agree in advance upon the precise method in which the law shall be violated. Pierce v. U. S. (1920), 252 U. S. 239, affirming (1917) 245 Fed. 878.

A conspiracy to obstruct recruiting in violation of the espionage act is criminal even when no means have been specially agreed on to carry out the intent; and hence it is not an objection to an indictment that means are not alleged. Frohwerk v. U. S. (1919), 249 U. S. 204.

Conspiracy under the espionage act and under secs. 4 and 37, Penal Code (35 Stat. 1088), discussed and compared. U. S. v. Stilson (D. C. 1918), 254 Fed. 120; affirmed (1919), 250 U. S. 583; Enfield v. U. S. (C. C. A. 1919), 261 Fed. 141.

Sec. 6, Penal Code, ante 2849, denouncing conspiracies to use force to prevent, hinder, or delay the execution of any law of the United States, does not apply to forcible obstruction of the selective service act and the espionage act, the penal provisions of which constitute the specific directions for the punishment of all obstructions, forcible or otherwise, of the recruiting and enlistment service, and repeal, pro tanto, sec. 6, Penal Code, since Congress did not intend to inflict punishment twice for the same offense. Haywood v. U. S. (C. C. A. 1920), 268 Fed. 795.

Intent. Intent is a necessary element in the offenses denounced by this section; those counts of the indictment which allege that the defendants intended, by the words used, to cause insubordination and obstruction of enlistment, state an offense; but those counts which merely state that defendants "attempted" or "willfully attempted" to obstruct the recruiting and enlistment service, do not state an offense. U. S. v. Nearing (D. C. 1918), 252 Fed. 223.

A person may be convicted of a conspiracy to obstruct recruiting by words of persuasion. Schenck v. U. S. (1919), 249 U. S. 47; O'Connell v. U. S. (1920), Sup. Ct., decided May 17, 1920.

It was not necessary to allege the mears by which the conspiracy was to be carried out. A conspiracy to obstruct recruiting would be criminal even if no means were agreed upon specifically by which to accomplish the intent. It is not necessary to allege intent, for intent to accomplish an object can not be alleged more clearly than by stating that parties conspired to accomplish it. Frohwerk v. U. S. (1919), 249 U. S. 204.

Mental attitude is implied in the words 46 support," "favor," and "oppose." The offense being one whose definition necessarily includes intent, indictment therefor need not allege intent, but only the acts done. Schulze v. U. S. (C. C. A. 1919), 259 Fed. 189, affirming 253 Fed. 377.

Whether a defendant, through drunkenness, was capable, at the time of the utterance, of entertaining the specific intent required by the espionage act, is a question for the jury. Stenzel v. U. S. (C. C. A. 1919), 261 Fed. 161.

Question whether defendant had knowledge of an article printed and circulated in a paper of which he was the owner, editor, and manager held one for the jury. Bouldin v. U. S. (C. C. A. 1919), 261 Fed. 674; certiorari denied, 253 U. S. 490.

Intent in making statements calculated to cause insubordination, disloyalty, etc., in military forces, a question for the jury. Anderson v. U. S. (C. C. A. 1920), 264 Fed. 75 certiorari denied, 253 U. S. 495. A statement that the "government Was for the profiteers held to refer to the administration, and not to the sys m of polity or body of principles or rules by which the people are lawfully guided under the Constitution. Stokes v. U. S. (C. C. A. 1920), 264 Fed. 18.

Prior or other statements of accused. In a prosecution for attempting to incite disloyalty and refusal of duty in the military service, evidence of statements made by defendant before the entrance of the United States into the war held admissible, as tending to show the state of mind and feeling of defendant. Howenstine v. U. S. (C. C. A. 1920), 263 Fed. 1.

In a prosecution for giving counsel and advice against enlistment, brought under this section, evidence of statements and conversations of defendant other than those charged in the indictment, while the United States was engaged in the World War. held admissible to show the intent with which the words charged were spoken,

when properly limited to such purpose. Boehner v. U. S. (C. C. A. 1920), 267 Fed. 562.

In a prosecution for uttering language intended to incite resistance to the United States, then at war, and supporting the cause of its enemies, in violation of the above section, evidence of statements by defendant after the beginning of the war but before the entry of the United States into the same, showing that he was then a strong supporter of Germany, held admissible, on the question of intent in using the language charged. Albers v. U. S. (C. C. A. 1920), 263 Fed. 27; Seebach v. U. S. (C. C. A. 1919), 262 Fed. 885; Shidler v. U. S. (C. C. A. 1919), 257 Fed. 620; Herman v. U. S. (C. C. A. 1919), 257 Fed. 601; certiorari denied, 251 U. S. 558; but see Kammann v. U. S. (C. C. A. 1919), 259 Fed. 192; Grubl v. U. S. (C. C. A. 1920), 264 Fed. 44.

And likewise of statement made before the passage of the espionage act. Deason v. U. S. (C. C. A. 1918), 254 Fed. 259; certiorari denied, 249 U. S. 607; Equi v. U. S. (C. C. A 1919), 261 Fed. 53; certiorari denied, 251 U. S. 560; but see Wolf v. U. S. (C. C. A. 1919), 259 Fed. 388.

And likewise on a prosecution for conspiracy to induce violation of the selective service act, of statements and publications prior to the passage of said act. Haywood v. U. S. (C. C. A. 1920), 268 Fed. 795.

In a trial under this section for publishing and distributing seditious literature, admission of other publications distributed by defendants held not error, as limited to the question of intent. Partan v. U. S. (C. C. A. 1919), 261 Fed. 515; certiorari denied, 251 U. S. 561; American Soc. Society v. U. S. (C. C. A. 1920), 266 Fed. 212; certiorari denied, 254 U. S.

Held prejudicial error to admit evidence of threats made by the defendant against the President, unconnected with the acts with which he was charged. Hall v. U. S. (C. C. A. 1919), 256 Fed. 748.

In cases where there are eye or ear witnesses to the happening of an isolated transaction, and the sole question is whether it happened or did not happen, it is not proper or competent to permit the introduction of evidence of remote and disconnected matters, not charged in some good count in the indictment, to prove Intent, where the element of intent is not involved in the crime charged. Holz. macher v. U. S. (C. C. A. 1920), 266 Fed. 979.

False newspaper publications.-An indictment against newspaper publishers, under the espionage act (40 Stat. 219), for making false reports with intent to obstruct

the military or naval forces, by altering original news dispatches before publication, is sustained by evidence showing that the dispatches were "lifted" from other publications and then altered so as to give aid to the enemy. United States v. Schafer (D. C. 1918), 254 Fed. 135; affirmed (1920), 251 U. S. 466, as to certain defendants.

An indictment alleged that defendants published a newspaper containing printed matter calculated and intended to induce eligible persons to refuse to enlist, and to induce persons liable to draft not to submit to registration and draft. Held, on demurrer, that the indictment states an offense under sec. 3, Title I of the espion. age act (40 Stat. 217) as amended by act of May 16, 1918. U. S. v. Prieth (D. C. 1918), 251 Fed. 946.

Alleging false causes of war. The publication of a pamphlet denouncing preparedness, inveighing against war, and characterizing military service as murder or attempted murder, is a violation of sec. 3 of the espionage act, since it tends to suppress patriotic feeling and to cause unrest and insubordination in the military forces. United States v. Routin (D. C. 1918), 251 Fed. 313.

The publication of a book that challenged the sincerity of America's war was a violation of this section. U. S. v. Binder (D. C. 1918), 253 Fed. 978.

Seditious utterances.-An indictment alleging that defendant, in the presence of several persons in a saloon, stated to a soldier that the Kaiser could "lick " England and France, and would soon come to the United States and then "all you men will have to kiss the Kaiser's hands and feet," states an offense under SEC. 3 of the espionage act of June 15, 1917. U. S. v. Dembowski (D. C. 1918), 252 Fed. 894.

In addressing a public audience, a Soclalist lecturer said, in substance, that any person who enlisted in the Army of the United States for service in France would be used for fertilizer, and that was all he was good for, and that the women of the United States were nothing more or less than brood sows to raise children to get into the Army and be made into fertilizer. She was

held to have violated sec. 3 of the espionage act of June 15, 1917 (40 Stat. 219), which provides that "Whoever, when the United States is at war, * * * shall willfully obstruct the recruiting or enlist ment service of the United States, to the injury of the service of the United States, shall be punished " as the act directs. The word "obstruct" means to hinder, impede, retard, or embarrass; and any efficient means likely to accomplish such a purpose

is within the condemnation of the statute. Mere words, without physical force, may be the most potent means of accomplishing those ends. It is not necessary for the Government to show that some particular person was induced not to enlist. The prohibited result will be presumed from the language and the circumstances. O'Hare v. United States (C. C. A. 1918), 253 Fed. 538; certiorari denied, 249 U. S. 598.

The defendant was indicted and convicted of violating the espionage act (40 Stat. 219), as amended by the act of May 16, 1918 (40 Stat. 553). The main theme of the defendant's speech was socialism, and he began by saying he had just returned from a visit to the workhouse, where three of their most loyal comrades were paying the penalty for their devotion, these three having been convicted of aiding and abetting another in failing to register for the draft. The records of these convictions were properly admitted in evidence to show what those grounds were in order to show what the defendant was talking about and to explain the true import and intent of the address. It was also proper to admit in evidence an "antiwar proclamation and program," coupled with testimony that about an hour before his speech the defendant had stated that he approved of that platform in spirit and in substance. It was proper to instruct the jury that they could not find the defendant guilty for advocacy of any of his opinions unless the words used had as their natural tendency and reasonably probable effect to obstruct the recruiting service, and unless the defendant had the specific Intent to do so in his mind. Debs v. U. S. (1919), 249 U. S. 211.

The publication of a pamphlet denouncing preparedness and characterizing milltary service as murder, held to be a violation of this section. U. S. v. Boutin (D. C. 1918); 251 Fed. 313.

It was not error to allow a witness to testify as to the impression made upon him by defendant's speech, though the witness could give only the substance of the speech. Trelease v. U. S. (C. C. A. 1920), 263 Fed. 886.

Language used by defendants in discussing the World War, the disasters of the Allies, and the successes of the enemy from day to day and week to week, in a shop used as a place of meeting, gossip, and discussion, which was obtained by the use of a dictaphone, held to support a conviction for favoring the cause of the enemy, and opposing the cause of the United States, in violation of the above section, and not within the First Amendment. Schoborg v. U. S. (C. C. A. 1920), 264 Fed. 1; certiorari denied, 253 Fed. 494.