[10] 7. In the Schoborg Case, complaint is made that there was no evidence to support the twenty-seventh count of the indictment which was submitted to the jury and covered by the verdict of guilty. If this were true, it would not be important if the conviction upon the other counts is to be sustained. It seems probable that there is a mistake in this particular, because the principles upon which the court acted would indicate that he intended to withdraw count 27 from the jury, and instead to submit one of those which were withdrawn; but this is not material to the question of reversal. [11] 8. It is objected that the court charged that it was sufficient to make out the statutory offense if the words were intended to and were reasonably calculated to some extent to help the cause of the one and injure the cause of the other, without going further and saying that the jury must find in the circumstances of the particular utterance a condition of things which would make the words spoken tend to create a clear and present danger. If the charge as given should have been modified and limited as now claimed, it was the duty of defendants to bring to the attention of the court the limitations which they desired incorporated. They did nothing except to save an exception to this paragraph of the charge as given. When a charge is correct in its general thought and aspect, and is later criticized only because it did not draw sufficiently refined distinctions, a mere general exception to the proposition as given by the court is not sufficient basis for review-lacking reasonably clear inference that the precise limitation was intended to be relied upon and to be put before the court. [12] 9. The same is true as to the complaints against the charge because it told the jury that it was possible for one to be guilty of the offense by a declaration that he is on the side of Germany or wants to see Germany win, or that he is against the United States and wants to see the United States lose. It is said that this is entirely too narrow a construction. So it may be, sometimes; yet undoubtedly there might be cases where it would be a perfectly accurate statement. The defendants should have pointed out to the trial judge their particular theory which made it inapplicable to this case. We cannot say that it was either erroneous or prejudicial. 10. Feltman had been a subscriber to The Fatherland and the New York Staats-Zeitung. There was evidence which was said to indicate that he had also been a reader of The Bull, and, if this were true, it would, in connection with his subscription to the other papers, tend to corroborate the charge that he opposed the cause of the United States and supported that of Germany. The evidence regarding The Bull was not strong, but we cannot say it had no tendency in the direction claimed, or that there was error in letting it go to the jury. It is not important to discuss the details of the question. 11. The errors alleged are very numerous, but they are either all substantially covered by what we have said in the grouping of the various subjects, or they impress us as not calling for separate discussion. The judgment below, in each of the three cases, is affirmed. (264 F.) WIMMER v. UNITED STATES.* (Circuit Court of Appeals, Sixth Circuit. March 12, 1920.) No. 3253. 1. War 4- Espionage Act not invalid under constitutional provision as to treason. The provision of Espionage Act June 15, 1917, § 3, as amended by Act May 16, 1918 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10212c), making it an offense, by word or act, to support or favor the cause of any country with which the United States is at war, or to oppose the cause of the United States, is not, as applied to conduct consisting of words only, unconstitutional as punishing treasonable conduct, without proof of the overt act, and without the two witnesses required by the Constitution, as neither words nor intent alone constitutes treason. 2. War 4-Acts or words of seditious nature punishable, notwithstanding constitutional provision. Congress may punish, under the ordinary rules of prosecution and without trenching on the constitutional limitation as to treason, acts or words which are of a seditious nature and tend towards treason, but which are not of the direct character and degree constituting treason. 3. Treason 6-Adherence and giving aid both necessary and favoring or supporting insufficient. Under the constitutional definition of "treason" as adhering to the enemies, giving them aid and comfort, both adherence and giving aid are necessary, and to favor or support the enemy is insufficient. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Treason.] 4. Criminal law 371(1)—Similar statements admissible to show Intent. In a prosecution under Espionage Act June 15, 1917, § 3, as amended by Act May 16, 1918 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10212c), for favoring the cause of the enemy and opposing that of the United States, statements similar to those alleged in the indictment, but made about the same time and place, were admissible to show intent, and it was immaterial that they were repetitions of those alleged. 5. War 4-Language made question for jury as to favoring enemy and opposing cause of the United States. A defendant charged under the Espionage Act June 15, 1917, § 3, as amended by Act May 16, 1918 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10212c), with saying that America did not have a chance to win the war, that the President started the war to protect Wall Street brokers, that the President was a friend of the rich man, and that the Kaiser was a friend of the poor man, was not entitled to a directed verdict, on the theory that there was no such favoring of the enemy and opposing of the government as tended to a clear and present danger. In Error to the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge. Peter Wimmer was convicted of an offense, and he brings error. Affirmed. Fred W. Schmitz, of Covington, Ky., for plaintiff in error. Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Certiorari denied 252 U. S. -, 40 Sup. Ct. 586, 64 L. Ed. DENISON, Circuit Judge. The plaintiff in error was convicted of a violation of the so-called Second Espionage Act, being section 3 of title 1 of the Act of June 15, 1917, as amended May 16, 1918 (40 Stat. 553 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10212c]). The indictment is based wholly upon what may be called clause 10 of the amendatory act, which reads: "Whoever shall by word or act support or favor the cause of any country with which the United States is at war or by word or act oppose the cause of the United States therein, shall be punished. Upon the trial, the third count of the indictment was withdrawn, and the conviction was under the first and second counts. These, in distinctive form, allege that Wimmer, while the United States was at war, did, by words and acts (1) support and favor the cause of Germany, and (2) oppose the cause of the United States therein. Wimmer's conduct, by which it is alleged he broke this law, was that, on June 26, 1918, he made statements, willfully, unlawfully, and feloniously, which were in substance and effect as follows: "That America did not have a chance to win this war; that President Wilson started the war to protect the Wall Street brokers, who had purchased English and French securities; that President Wilson was a friend of the rich man; and that, when he [Wimmer] was in Germany about six years ago, he found that the Kaiser was always a friend of the poor man." The trial court submitted to the jury, as questions of fact, whether Wimmer made these statements, whether they were by him deliberately intended to support and favor the cause of the enemy or oppose the cause of the United States in the war, and whether they were, and were known to Wimmer to be, suitable and likely to produce that effect. [1, 2] 1. As the case is presented to us, Wimmer's first position is that the act is unconstitutional, because it punishes treasonable conduct, without proof of the overt act and without the two witnesses. thereto required by the Constitution. As we understand the argument, it is, in substance, that adhering to and giving aid and comfort to the enemy is treason, according to the constitutional definition; that to support the cause of the enemy, or oppose that of the United States, against the prohibition of the Espionage Act, is adhering to and giving aid and comfort to the enemy, and is therefore treason; and hence that it cannot be punished unless shown by the degree of proof required by the Constitution. A very similar contention was summarily overruled by the Supreme Court in Frohwerk v. U. S., 249 U. S. 204. 210, 39 Sup. Ct. 249, 63 L. Ed. 561. If we had to do with a case where the conduct which was prosecuted consisted of acts, we would have to consider the line of reasoning upon which Wimmer depends. That Congress has power to take hold of an act which is, in fact, treason, and to say that it shall be severely punished, without the proof which is required to establish treason, and to justify this result because the conduct is given another name, is a proposition which we have no occasion to affirm or deny. Here the only conduct alleged or proved, as making out the offense, consisted of oral statements-words only. It is well settled that one can (264 F.) not, by mere words, be guilty of treason (38 Cyc. 954, and cases cited), and thus the fallacy of Wimmer's contention becomes apparent. It is a mistake to say that the intent is the thing which makes the treason, and that where the disloyal intent is there treason is. The requirement that there shall be two witnesses is purely evidential, but when the requirement is extended to proof of the overt act, it becomes clear that there must be an overt act to constitute the crime, and the act is incorporated into the definition. Thus we find, in the constitutionally defined crime, two elements, the intent and the act; neither is dominant. Intent minus act is not treason, any more than act minus intent is. Since it was declared by Chief Justice Marshall in the Bollman Case, 4 Cranch, 75, 2 L. Ed. 554, it has never been doubted that 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; and even more must this be true of words. [3] Further distinction is found in the very words of the constitutional definition. Treason is "adhering to their enemies, giving them aid and comfort." Both adherence and giving aid are necessary. To "favor or support" is, very likely, to "adhere"; but it does not carry the idea of giving aid and comfort, unless by a rather remote implication. Hence it may well be said that adherence by words only is an offense quite distinct from treason. [4] 2. Evidence was received showing that Wimmer made other statements substantially like those alleged in the indictment and proved, and at about the same time and place These were clearly admissible as showing intent, and they were admitted for that purpose only. We have covered this question by what is said in the opinions in White v. U. S., 263 Fed. 17, C. C. A.- (filed February 19, 1920), and Schoborg v. U. S., 264 Fed. 1, C. C. A. (this day filed). It is also urged that these other statements were identical with those named in the indictment, and so could add nothing to the inference of intent. On the contrary, each repetition of such statements confirms the thought that they were deliberately intended to produce their natural effect, rather than merely impulsive and casual. [5] 3. Whether Wimmer is protected by the constitutional guaranty of free speech may not be overlooked, though the point has not been expressly made below or here. We have discussed this subject in the Schoborg opinion, and while Wimmer's conduct was, in degree by no means as extreme as was the conduct of the respondents in the Schoborg Case in constituting that "favoring" of the enemy and "opposing" of this government which tends to "clear and present danger,' and which the statute could rightfully prohibit, yet we do not think he was, as matter of law, entitled to be acquitted for this reason. Schaefer v. U. S. (U. S. S. C., filed March 1, 1920) 251 U. S. 466, 40 Sup. Ct. 259, 64 L. Ed.. No question excepting the broad one of a right to an instructed verdict, arises on the subject, on this record. The judgment is affirmed. LOCKHART v. UNITED STATES. (Circuit Court of Appeals, Sixth Circuit. March 12, 1920.) No. 3306. 1. Criminal law 1166(9)-Denial of continuance not prejudicial, unless probably affecting result. The overruling of a motion for a continuance because of the absence of a witness is not prejudicial error, unless there is a strong probability that the absence of the witness substantially affected the result of the trial. 2. Criminal law 595(4)-Denial of continuance not abuse of discretion. On a trial under Espionage Act, tit. 1, § 3, as amended by Act May 16, 1918 (Comp. St. 1918, Comp. St. Ann. Supp..1919, § 10212c), the denial of a motion for a continuance because of the absence of a witness, who was abroad with the army, was not an abuse of discretion, where defendant was convicted only of the offenses committed after the witness went abroad. 3. Criminal law 1044, 1054 (3)-Insufficiency of evidence, not urged below, cannot be considered. Defendant is not entitled to contend that there is no evidence to support a conviction of certain counts, where no motion was made for an instructed verdict, and no exception taken to the charge which submitted such counts. 4. Criminal law 935 (3)-Absence of evidence cannot be first urged in motion for new trial. It is too late to raise for the first time on motion for a new trial the contention that there was no evidence to support a conviction on counts on which defendant was convicted. 5. Criminal law 1036(1), 1054(3)—In absence of objection evidence not reviewed, unless miscarriage of justice appears. In the absence of objection or exception properly raising the contention that there was no evidence to support the conviction, an appellate court will only look into the subject far enough to ascertain whether it is reasonably clear that there has been a miscarriage of justice. 6. War 4-Remarks of defendant held prohibited by Espionage Act and within power of Congress to prohibit. Remarks made by a man of means and standing, such as that he would kill his son if he enlisted, that he hoped the transport which took him across would be sunk, that he wanted Germany to win and the United States defeated, and hoped they would come over here and defeat us, that after the war he was going to dispose of everything he had and go to Germany, and help that country, that he would not buy war securities, because he would not give anything against Germany, and that there was no truth in what the papers were publishing about alleged victories over the Germans, must have had the direct harmful influence, which Congress had both the power and intent to prohibit. 7. Criminal law 1036(1), 1054(1)—Admission of evidence not reviewable without objection or exception. In a prosecution under Espionage Act, tit. 1, § 3, as amended by Act May 16, 1918 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10212c), defendant could not complain of the admission of testimony that he bought German war bonds in 1916, where no objection was made or exception reserved. 8. Constitutional law 90-War 4-Espionage Act not unconstitutional. The provision of Espionage Act, tit. 1, § 3, as amended by Act May 16, 1918 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10212c), making For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |