136 F.2d 661 (7th Cir. 1943), 8165, United States v. Haupt

Docket Nº:8165-8170.
Citation:136 F.2d 661
Party Name:UNITED STATES v. HAUPT et al.
Case Date:June 29, 1943
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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136 F.2d 661 (7th Cir. 1943)

UNITED STATES

v.

HAUPT et al.

Nos. 8165-8170.

United States Court of Appeals, Seventh Circuit.

June 29, 1943

Rehearing Denied July 23, 1943.

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[Copyrighted Material Omitted]

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Paul A. F. Warnholtz and Frederick J. Bertram, both of Chicago, Ill., for appellants.

J. Albert Woll, Earle C. Hurley, and Richard G. Finn, all of Chicago, Ill., for appellee.

Before MAJOR, KERNER and MINTON, Circuit Judges.

MAJOR, Circuit Judge.

These defendants were jointly indicted, tried and convicted on a charge of treason. Separate judgments were entered and the defendants have separately appealed. Such appeals have here been consolidated. The defendants Hans Max Haupt, Walter Otto Froehling and Otto Richard Wergin were sentenced to death, and the defendants Erna Emma Haupt, Lucille Froehling and Kate Martha Wergin, each sentenced to imprisonment for a period of twenty-five years and each to pay a fine of $10, 000.

The indictment contained one count, and in substance charged the defendants with adhering to the enemies of the United States and giving them aid and comfort, in that the defendants adhered to and gave aid and comfort to a spy for, and secret agent and saboteur of, the government of the German Reich, one Herbert Haupt.

All the defendants were born in Germany but became naturalized citizens of this country. Herbert Haupt was one of a number of saboteurs who were tried before a Military Tribunal in Washington, found guilty, and executed on August 9, 1942. He was the sone of Hans Max Haupt and Erna Emma Haupt and a nephew of Walter Otto Froehling, husband of Lucille Froehling. He was not related to Otto Richard Wergin or Kate Martha Wergin.

Herbt Haupt, the alleged agent and representative of the government of the German Reich, came to the United States from Germany and made his appearance in Chicago at the home of the Froehlings on June 19, 1942. On June 27, he was arrested by agents of the Federal Bureau of Investigation (called F.B.I.).

Defendants in their brief state sixty-five contested issues, many of which are subdivided so that in reality the issues relied upon greatly exceed that number. Many of such issues could be readily disposed of as frivolous and without merit. There are a number, however, which raise serious questions concerning the validity of the proceedings and the trial. Most serious are the attack upon the indictment, the admission of statements procured from the defendants, the refusal of the court to allow a severance, and the court's charge to the jury.

The Indictment.

The indictment, containing one count, is predicated upon the following statutory provision: 'Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason.' 18 U.S.C.A. 1.

Each of the defendants by demurrer attacked the indictment for improper joinder of parties and offenses, for duplicity in that the defendants in a single count were charged with separate and distinct crimes, and for want of certainty and particularity. The attack is renewed here.

While we do not think it necessary to set forth the indictment verbatim, it appears important to state its essential allegations. After its formal introduction, it alleges that the defendants (naming each one of them) ' * * * continuously and at all times from June 17, 1942, up to and including July 17, 1942, under the circumstances and conditions and in the manner and by the means hereinafter set forth, then and there being persons owing allegiance to the United States, in violation of their said duty of allegiance, unlawfully, feloniously, maliciously, traitorously and treasonably did adhere to the enemies of the United States, to wit, to the Government of the German Reich, its counselors, armies, navies, agents, representatives and subjects with which the United States, at all times since December 11, 1941, has been at war, and did give to said enemies aid and comfort * * * .' Then follows an allegation as to the date when each of the defendants became a citizen and a resident of the

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United States. Following this, the allegations concern the status of Herbert Haupt as an agent and representative of the Government of the German Reich.

Briefly summarized, the allegations in this respect are to the effect that Herbert Haupt on or about June 17, 1942 came into the United States and 'served the Government of the German Reich as a secret agent, saboteur and spy, in the carrying on of its war with the United States. ' Such service contemplated, among other things, the destruction of war materials, premises and utilities of the United States, the receipt of money from the German Reich and the disbursement of such money in connection with the procurement, manufacture and use of explosive substances and sabotage devices for the destruction of United States war materials, and the recruiting and hiring of persons to engage in such hostile enterprises against the United States. Further, his services involved the securing and transmitting to the Government of the German Reich information concerning the national defense of the United States, and the employment of persons to assist in securing and transmitting such information. Also, his services involved the making and conveying of false statements and reports, and the employment of other persons to do likewise, so as to interfere with the operation and success of the military and naval forces of the United States.

The indictment then alleges that the adherence of the defendants to the Government of the German Reich, its counselors, armies, navies, agents, representatives and subjects, and the giving of aid and comfort by the defendants to the same, consisted 'in their receiving, harboring, relieving and assisting Herbert Haupt, throughout said period of time, including the time from June 17, 1942, to July 17, 1942; in their aiding, abetting, assisting, counseling and advising Herbert Haupt in and concerning said service of said Herbert Haupt to the Government of the German Reich; in their countenancing said service; in their carrying out requests and instructions of said Herbert Haupt in connection with said service; in their giving false information regarding and concealing the identity of said Herbert Haupt, as a representative of the Government of the German Reich, and the mission of Herbert Haupt in the United States; in their receiving, holding, safeguarding and concealing the property and funds of said Herbert Haupt, and in misrepresenting and concealing the ownership of said property and funds, and in their maintaining and supporting the said Herbert Haupt throughout said period of time * * * .'

It is then alleged that the defendants 'when so adhering, and giving aid and comfort, to the Government of the German Reich' and its representatives, had knowledge of the status of Herbert Haupt, as theretofore alleged. Further, it is alleged that the defendants in the 'prosecution, performance and execution of said treason and of said malicious, traitorous and treasonable adhering and giving aid and comfort, ' at the several times thereinafter specified 'did do, perform and commit among others certain overt and manifest acts. ' Then follows an enumeration of forty-one overt acts. For the purpose of the present discussion, it seems unnecessary to relate or summarize such acts. It is sufficient to state that some of them are alleged to have been committed by all, some by a portion, and others by individual defendants. By way of illustration, thirty-one of such overt acts are alleged to have been committed by defendants other than Lucille Froehling, and thirty by defendants other than Walter Otto Froehling.

The most urgent attack upon the indictment is that the defendants are improperly joined, especially in a single count indictment. Defendants, in support of their contention in this respect, urge that the indictment shows on its face that they did not participate in, nor have they been charged with, all of the alleged offenses. A number of authorities are cited in support of the well-recognized rule that two or more defendants cannot properly be charged in the same indictment with distinct and several offenses. We need not discuss the rule of such authorities unless it is applicable to the instant situation. Its applicability depends upon a determination as to whether the defendants have been charged with separate and distinct offenses. This in turn depends upon whether the overt acts as alleged charge separate and distinct offenses.

We think defendants' contention misconceives the constituent elements of the crime of treason. According to the statutory definition, it consists in either (1) levying war against the United States, or (2) adhering to their enemies, giving them aid and comfort. This statutory definition

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follows that contained in the Third Article of the Constitution. The Constitution, however, after defining treason, provides: 'no Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in Open Court. ' Sec. 3. Upon first reflection, this constitutional requirement might indicate that the overt act constitutes an essential element of the crime, but upon mature study, we agree with the government's contention that such is not the case. Certainly it is not included either in the statutory or constitutional definition.

The indictment charges the defendants, in the language of the statute, with 'adhering to their enemies, giving them aid and comfort. ' The character of such adherence, aid and comfort, as well as the status of Herbert Haupt as an enemy...

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