Buessel v. United States

Citation258 F. 811
Decision Date16 April 1919
Docket Number178.
PartiesBUESSEL v. UNITED STATES.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Ward Circuit Judge, dissenting.

Joseph P. Tuttle, of Hartford, Conn., for plaintiff in error.

John F Crosby, U.S. Atty., and George H. Cohen, Sp. Asst. U.S Atty., both of Hartford, Conn.

Before WARD, ROGERS, and HOUGH, Circuit Judges.

ROGERS Circuit Judge.

This is an indictment under Espionage Act June 15, 1917, c. 30, tit. 1, Sec. 3, 40 Stat. 219, as amended by Act May 16, 1918, c. 75, Sec. 1, 40 Stat. 553 (Comp. St. 1918, Sec. 10212c). The indictment upon which the defendant was originally placed on trial contained a number of counts, but all except the third, fourth, and seventh were withdrawn from the consideration of the jury.

The third count alleges that the defendant, when the United States was at war, uttered disloyal and abusive language about the form of government, and did by word support and favor the cause of Germany, and by word oppose the cause of the United States therein. It alleges in particular the following language:

'That the present war in which the United States is engaged is nothing but a Wall Street affair; that Germany is the most wonderful country in the world, and it could never be crushed by any other nations; that the war would last four or five years more, as the Germans were a marvelous people and the other nations could never cope with them; that Germany could easily crush the Allies, because the Germans worked under one general, Hindenburg, and the Allies were deficient in maneuvers, and the United States would have to fight the battle alone; that it was unreasonable and unjust for the United States to have gone into the present war; that in Germany, public affairs like the army and navy were run by men, but in this country they were run by women, Mrs. Wilson, for example; that the material written in the newspapers is ridiculous, that the Kaiser is not pictured as he truly is, that he is a wonderfully clever man, good and just, well versed in all the arts, and that he would be a wonderful man, even if he were not the Kaiser; that he was very indignant when asked to subscribe to the Red Cross, that he did not believe in it, and that those collecting for it received a commission; that Japan and Mexico would soon be in this war against this country; that the schools in this country were failures.'

The fourth count alleges that the defendant uttered--

'disloyal, scurrilous and abusive language about the military and naval forces of the United States, and language intended to bring the military and naval forces of the United States into contempt, scorn, contumely, and disrepute, and in particular, the following language, to wit: That the army of the United States is not loyal, and that almost any of our soldiers could be bought for a very small sum; but that the army of the Kaiser was absolutely loyal, and that the men over there would give their lives if necessary in response to the Kaiser's wish, but that no dependence could be placed on the American soldier.'

The seventh count alleges that the defendant uttered--

'disloyal and abusive language about the flag of the United States, and language intended to bring the flag of the United States into contempt, scorn, contumely, and disrepute, and in particular, the following language, to wit (speaking to a person wearing a flag pin and referring to the flag pin): ' Remove that thing from your coat. I do not like it."

That portion of the Espionage Act which is involved in this case reads as follows:

'Whoever, when the United States is at war, shall willfully utter, print, write or publish any disloyal, profane, scurrilous or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, * * * or any language intended to bring the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag of the United States, or the uniform of the army or navy of the United States into contempt, scorn, contumely or disrepute, or shall willfully utter, print, write or publish any language intended to incite, provoke or encourage resistance to the United States or to promote the cause of its enemies, * * * and 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,' etc.

It is assigned for error that a demurrer to the third count of the indictment was overruled. There are assignments of error in reference to the admission of evidence, sometimes with no exception taken thereto. There are assignments of error for refusals to charge as requested, although in each instance no exception was taken. There are assignments of error as to the charge itself, one of them covering nearly a whole page of the printed transcript; but no exceptions were taken at the time to any portion of the charge as delivered. And in examining what purports to be the transcript of record we find it contains no bill of exceptions and no certificate of any kind from the judge as to the correctness of anything contained in the transcript relating to the proceeding at the trial.

This being a criminal case and tried in a common-law court, the method by which to review it is by writ of error. It has, however, been brought into this court on appeal; the defendant in his petition for appeal praying that 'a transcript of the record, proceedings, and documents upon which said decree was based, duly authenticated,' be sent to this court. What purports to be a transcript of the record is here; whether it is duly authenticated and can be considered is a question which the court must decide. A writ of error is of common-law origin, and it was used to review simply alleged errors of law, committed in a common-law action. In such actions there were no errors of facts to be reviewed, as the juries were sole judges of the facts. An appeal, on the other hand, is a process of civil-law origin, and was employed to review errors of fact and of law committed by courts of equity or admiralty and maritime jurisdiction, in which the judges passed on the facts as well as the law. The distinction between the common-law jurisdiction and the equity jurisdiction is maintained in the courts of the United States, and until Congress passed Act Sept. 6, 1916, c. 448, Sec. 4, 39 Stat. 727, if an appeal was taken in a common-law action or a writ of error in an equity suit the appellate court could not have considered it. But the act referred to, which can be found in the margin, [1] provides that an appeal shall not be dismissed solely because a writ of error should have been sued out. U.S. Compiled St. (1916) Ann. vol. 3, Sec. 1649a, p. 3275.

Whatever the exact meaning of the above act may be, it certainly does not mean that the appellate court shall have the right, where a criminal case is brought up on an appeal, to exercise the same comprehensive powers of review which it is entitled to exercise where an appeal is rightfully taken. To hold that such was the intention would be to make the act unconstitutional, as it would make the court the final judge of the facts as well as of the law in a class of cases where there is a constitutional right to a trial by jury, whose verdict is decisive as to the facts. A possible construction may be that we are simply to regard the appeal as though a writ of error had been sued for and granted, and that we should in all other respects proceed accordingly, so that the record should be required to be certified to the court in the same manner that would be required if a writ of error, instead of an appeal, had been sued out. Another possible construction may be that the statute is not to be so narrowly construed, but, being remedial in its nature, is to be understood as meaning that if an appeal has been taken, and the record has come up, not as it would be required to come up on a writ of error, but as it would come up on an appeal, the appellate court is then to proceed in the same manner as though the case was before the court on a writ of error and a record certified as required in common-law actions. We do not decide which of these two constructions is to be given to the act. In the view we take of this case it is unimportant which construction is correct. We should reach the same conclusion under either, so far as the questions here involved are concerned; for, whether the record be regarded as a record at law or a record in chancery, it is so defective in either case that this court cannot consider it, even under the act of 1916, whatever construction be given to the act.

We shall consider the case now upon the theory that under the act the record should come into this court in the manner it would have been required to come under a writ of error; and, as we shall see, a writ of error implies a bill of exceptions, where certain erroneous rulings are to be reviewed, and the record is here, as already stated, without a bill of exceptions.

We shall first consider the necessity of a bill of exceptions, and the effect of its omission. A bill of exceptions is a formal statement in writing of the exceptions duly taken at the trial to the decisions and instructions of the judge, with so much of the testimony as is necessary to enable the court to say whether error of law was committed in respect to the particular decisions or instructions to which the exceptions were taken.

Prior to the statute of Westminster (13 Edw. I, c. 31), the only errors reviewable at common law on a writ of error were those disclosed on the face of...

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