254 F. 120 (E.D.Pa. 1918), 114, United States v. Stilson

Docket Nº:114.
Citation:254 F. 120
Party Name:UNITED STATES v. STILSON et al.
Case Date:November 26, 1918
Court:United States District Courts, 3th Circuit, Eastern District of Pennsylvania
 
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254 F. 120 (E.D.Pa. 1918)

UNITED STATES

v.

STILSON et al.

No. 114.

United States District Court, E.D. Pennsylvania.

November 26, 1918

Francis Fisher Kane, Owen J. Roberts, and Samuel Rosenbaum, all of Philadelphia, Pa., for the United States.

Henry John Nelson and Henry John Gibbons, both of Philadelphia, Pa., for defendants.

DICKINSON, District Judge.

The spirit of frank and candid discussion of the legal merits of the case and defense which have been manifested throughout by counsel, not only justifies, but calls for, full consideration of all the points which counsel deem worthy of discussion. We shall therefore follow the line of thought presented by the

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arguments, although discussing the points involved in a somewhat different order.

1. First, with respect to the second point (reason 5) discussed by counsel. The defendants asked for a severance at the trial. Following the denial of this motion, a demand was made for the allowance of peremptory challenges to the limit which would have been allowed in the aggregate, had the defendants been separately tried. Perhaps the only comment for which this reason for a new trial calls is afforded by that made by counsel in moving for the severance, and demanding on behalf of each defendant the full number of challenges given by the act of Congress to all of the defendants jointly. The comment in effect was that it was made with the knowledge that the unbroken practice in the trial of cases in the courts of the United States was in line with the denial of the motion and of the claimed right of challenge. This was accompanied with an expression of the expectation of counsel that the trial judge would feel constrained to follow these precedents. This expectation was realized. As the trial judge did not feel at liberty to depart from the established practice, and as the same view is still entertained, no discussion of the principles of law involved seems to be called for, inasmuch as it is deemed unnecessary to vindicate a practice authoritatively established. Any relief to which the defendants may feel themselves entitled must be accorded by an appellate court.

2. Again, with respect to the question of the constitutional freedom of the press being involved, which is discussed by counsel as point 6 (reason 9). This may be passed with a very apt quotation from the brief of counsel. It is there recognized that, so far as a trial court is concerned, the question has been settled, but it is raised because (and here comes in the quotation) 'hope springs eternal in the human breast,' and the hope is expressed that the line of cases which admittedly rule the question against the defendants may be overruled. This court, however, is, of course, not asked to overrule them.

3. The point discussed as point 3 (reason 6) calls for nearly the same comment. A search warrant had been regularly issued, under the authority of which papers and things had been seized. These were subsequently offered in evidence. One of the defendants made certain statements at the time of the visit of the officers of the United States in serving the warrant.

It is not denied (in fact, is almost categorically conceded) that the weight of authority at least (to quote the briefs submitted) justifies the admission of the evidence which was admitted. Several additional observations may be made. The papers which were seized were so seized, not only by authority of a warrant for the purpose regularly issued, but they were not the papers of the defendants, but of the publishing corporation. Again, the papers consisted in the main of the files of the Kova publication, and the seizure was of little practical importance, beyond the facility thereby afforded the authorities to examine the publications as they chronologically appeared, and saved them the time and trouble of collecting them elsewhere.

A like observation may be made as to the admissions made by the defendants. They were admissible because clearly voluntary. The

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presence or absence of this finding is admittedly the test of admissibility, and the finding is not in question. Here, again, the point is robbed of all practical value because of the circumstance that the fact admitted was not in real controversy and was independently proven. Sparf v. United States, 156 U.S. 51, 15 Sup.Ct. 273, 39 L.Ed. 343; Bram v. United States, 168 U.S. 532, 18 Sup.Ct. 183, 42 L.Ed. 568.

4. This brings us to a consideration of those reasons for a new trial which present the substantial defense interposed. The defense is that there was no evidence to justify a finding that the defendants were engaged in a conspiracy to have committed the acts which admittedly are offenses condemned by the Espionage Law. Without going into details, there was the publication of the paper known as Kova, which not only contained articles which in themselves were violations of the law, but which in their whole tone and spirit, and in the tone and spirit of the publication itself, evidenced a defiance of the law and a purpose to oppose the operation of the law. In addition to this, there were other publications, in the form of pamphlets or circulars, which in every line breathed sedition.

The connection of one of the defendants with the commission of these acts was directly and clearly shown. The authorship of some of the articles and circulars was traced to him with satisfying directness. He was shown further to have been a party to the publication and circulation of others. This evidence went to the overt acts averments.

The distinction between the crime of conspiracy and the commission of the offenses which are the object of the conspiracy is clear enough, and sight of this should not, of course, be lost. When, however, offenses against the law are being committed, and are of such a character that they are necessarily the fruit of concert of action, all who participate in the things which are done, resulting in the act which is of this common product character, may, if the inference fairly arises out of everything which has been done, be found guilty of a conspiracy to do what has been done. It is, of course, true that the connection may have...

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