Dodge v. United States

• Decision Date: 16 May 1919
• Docket Number: 212.
• Citation: 258 F. 300
• Parties: DODGE v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Second Circuit

258 F. 300

DODGE v. UNITED STATES. ^[1]

No. 212.

United States Court of Appeals, Second Circuit.

May 16, 1919

Irving M. Weiss, of Buffalo, N.Y. (Eustace Reynolds, of Buffalo N.Y., of counsel), for plaintiff in error.

Stephen T. Lockwood, U.S. Atty., and John H. O'Day, Asst. U.S Atty., both of Buffalo, N.Y.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

ROGERS Circuit Judge.

The plaintiff in error, hereinafter called the defendant, comes into this court to reverse a conviction under Espionage Act June 15, 1917, c. 30, 40 Stat. 217, as amended by Act May 16 1918, c. 75, 40 Stat. 553. The indictment was based upon section 3 of title 1 of the act (Comp. St. 1918, Sec. 10212c) which is found in the margin. ^[1a] The indictment contains four counts. The first count in substance states that the defendant on June 22, 1918, at Buffalo, while the United States was at war with Germany and Austria-Hungary--

'* * * did then and there knowingly, wrongfully unlawfully, feloniously, and willfully utter and publish language intended to incite, provoke, and encourage resistance to the United States and promote the 'cause of its enemies,' by appearing upon the public streets in the presence and within the hearing of a large crowd of men forming part of the military forces of the United States, and capable of bearing arms, and, with the intent that they should hear, did then and there give utterance to words in substance to the effect that the United States should not be at war; that on July 3, 1918, there would be a meeting at the corner of Spring and Genesee streets, behind closed doors, at which things would be told about the war, and that his hearers were all invited to attend, and by inflection, tone of voice, and innuendo he, the said William Dodge, did then and there convey to his hearers the impression that things would be disclosed at said meeting about the present war that would bring the form of the government of the United States and the military and naval forces of the United States into contempt, scorn, contumely, and disrepute; and he, the said William Dodge, did furthermore then and there willfully utter, publish, and proclaim to the aforesaid crowd of men words and language in substance as follows:

''Let us organize and follow the leaders, the agitators. Now they call us agitators ***********. What right has the government to call us such now? If there was anything for us to fight for, we would do so, every one of us; but what are we fighting for? Nothing to our advantage; nothing for our good; nothing for our benefit. This war is not worth fighting for.'

'And at the same time and place the said William Dodge did enter into an argument with one of the audience, who stated that he was enlisted in the army of the United States, and the said William Dodge did then and there by word of mouth publicly heap scorn and contumely upon the said person because of his enlistment in the said army.'

The second count states that--

'at the same time and place and by the same means the defendant did knowingly, wrongfully, unlawfully, feloniously, and willfully attempt to cause and incite insubordination, disloyalty, and refusal of duty in the military and naval forces of the United States.'

The third count states that--

'at the same time and place, and in the same manner and by the same means as set forth in the two previous counts, the defendant did * * * knowingly, wrongfully, unlawfully, feloniously, and willfully attempt to obstruct the recruiting and enlistment service of the United States.'

The fourth count states--

'the manner and means of alleged violation, and charges that under the same circumstances and at the same time and place the defendant did in the same way by word and act oppose the cause of the United States in the aforesaid war.' the defendant pleaded not guilty. After a trial which lasted for several days, the jury rendered a verdict acquitting him on the second and fourth counts, and convicting him on the first and third counts. The defendant was sentenced to be imprisoned in the Maryland state penitentiary at Baltimore, Md., at hard labor for a term of six years.

The defendant's father was born in England and his mother in France. He himself was born in Buffalo, and he is a member of the Socialist Labor Party and of the Workers International Industrial Union, which prior to 1915 had been called the I.W.W.

It appears that while the jury was deliberating on its verdict the bailiff in charge brought to the judge a communication from it. Upon its receipt he summoned the counsel for both sides to his chambers and informed them that he had received a communication from the jury, but that he did not think he should disclose its substance at that time. Thereupon counsel withdrew and the judge returned an answer to the jury's communication by the bailiff in charge. After the verdict was received the judge informed counsel that what the jury had asked was whether defendant could be convicted on the first count, and that he replied, 'Yes;' and he stated that he had not at the time apprised counsel of the contents of the note, or of the reply, as it did not seem to him to be of enough importance, especially as he had in his instructions informed them that the defendant could be found guilty of one or all counts, or none at all; and it has been assigned as error that the court communicated with and instructed the jury, not in open court, and not in the presence and without the knowledge and consent of the defendant or his counsel, after the jury had retired to deliberate on their verdict.

It has been held in a few cases that after a jury has retired the court may give an instruction on a question of law in the absence of counsel. Bassett v. Salisbury Mfg. Co., 28 N.H. 438; Milton School District No. 1 v. Bragdon, 23 N.H. 507; Shapley v. White, 6 N.H. 172; Goldsmith v. Solomons, 2 Strob. (S.C.) 296, 300. In the case last cited the court said:

'The intercourse between the jury and the bench is, in many respects, very confidential. Often the communications from the jury are of that kind which ought not be communicated to the bar.'

These cases are contrary to the clear weight of authority. In 38 Cyc. 1859, it is said:

'It is almost universally held that no communication ought to take place between the judge and the jury after the cause has been committed to them by the charge of the judge, unless in open court.'

That is undoubtedly the law. The leading case on this subject is Sargent v. Roberts, 1 Pick. (Mass.) 337, 11 Am.Dec. 185, which was decided by the Supreme Court of Massachusetts in 1823. In that case, after a jury had been out for six hours, the foreman wrote to the judge, at his chambers, that they could not agree and that they waited for his directions. The judge replied in writing, saying that he was unwilling to permit them to separate, and gave such directions as would enable them to reconsider the cause in a more systematic manner.

And he directed the jury to bring his letter into court with them in order that it might be filed with the papers in the case. A new trial was ordered. The opinion was written by Chief Justice Parker, who said:

'As it is impossible, we think, to complain of the substance of the communication, the only question is whether any communication at all is proper, and, if it was not, the party against whom the verdict was is entitled to a new trial. And we are all of opinion, after considering the question maturely, that no communication whatever ought to take place between the judge and the jury, after the cause has been committed to them by the charge of the judge, unless in open court, and, where practicable, in the presence of the counsel in the cause.'

The courts are practically unanimous in holding that private communications between court and jury are improper, and that all communications should be made in public. They are not, however, unanimous in holding that a private communication between judge and jury will in any case in which it occurs nullify the verdict. In Moseley v. Washburn, 165 Mass. 417, 43 N.E. 182, the judge answered a written question from the jury as to the date from which to compute interest; it having been covered in the original instruction. This was held not to require reversal. In Whitney v. Commonwealth, 190 Mass. 531, 77 N.E. 516 (1906), a civil case, the judge commonwealth, 190 Mass. the jury privately, the communication being a collateral direction as to the manner of using the papers supplied for the reception of a verdict, and the court held that this did not require the verdict to be set aside. The court said in the Whitney Case:

'There are grave objections to any communication with a jury made as this was. * * * But the facts stated in this case make it certain that no miscarriage of justice has resulted.'

In Buntin v. Danville, 93 Va. 200, 24 S.E. 830, the judge answered a question of the jury, both question and answer being in writing, without informing counsel, who were in court engaged in another case. The court declined on that account to reverse, and declared that, while the better practice is to inform the counsel of any question asked by the jury, the irregularity would not vitiate the verdict, as the answer correctly stated the law and the verdict was plainly right. In People v. Kelly, 94 N.Y. 526, the judge answered a written communication from the jury. It did not appear what the communication was. The court held that...