United States v. Ault

• Decision Date: 01 January 1920
• Docket Number: 4928.
• Parties: UNITED STATES v. AULT et al.
• Court: U.S. Court of Appeals — Ninth Circuit

263 F. 800

UNITED STATES v. AULT et al.

No. 4928.

United States District Court, W.D. Washington, Northern Division.

January, 1920

Robt. C. Saunders, U.S. Dist. Atty., of Seattle, Wash.

John F Dore and Mark M. Litchman, both of Seattle, Wash., for defendants.

NETERER District Judge.

The indictment, under seven counts, charges conspiracy, under section 37, P.C. (Comp. St. Sec. 10201), to violate certain subdivisions of section 3 of the Espionage Act (section 10212c, Comp. St. 1918, Comp. St. Ann. Supp. 1919).

Count 1 charges that the defendants--

'continuously throughout the period of time from May 17, 1918, to the presentation of the indictment, * * * conspired * * * to commit an offense against the United States, to wit, * * * obstructing the recruiting and enlistment service of the United States when the United States was at war, * * * by means of personal solicitations, and * * * speeches, * * * articles, stories, editorials, * * * published in * * * the Seattle Union Record, circulating * * * among persons * * * eligible * * * and fit for recruiting and enlistment in the military and naval forces of the United States. * * * '

Nineteen overt acts are set out to effect the object of the conspiracy, all being publications in the Union Record. The first act is dated November 18, 1918, and the last act dated November 27, 1919. The other acts, January 24, February 4 June 2, 26, 28, 30, September 8, 10, 13, 18, 27, and November 11, in 1919.

Concisely stated, the remaining counts, in the same language, charge: 2. The use of--

'scurrilous and abusive language about the form of the government of the United States, the Constitution, * * * the flag, * * * the uniform. * * * '

3. The use of language intended to bring the form of the government, the Constitution, the military and naval forces, the flag, and the uniform into contempt, scorn, contumely, and disrepute.

4. The use of--

'language intended to incite, provoke, and encourage resistance to the United States,' 'by pretending * * * to advance the interests of laborers as a class, and giving them complete control and ownership of all property and of the means of producing and distributing property through the abolition of all other classes of society (by the said defendants, their associates and confederates), designated as 'capitalists,' 'the capitalistic class,' 'the master class,' 'the ruling class,' 'exploiters of the workers,' 'bourgeois,' such abolition to be accomplished not by political action, or with any regard for right or wrong, but by the continual and persistent use and employment of unlawful, tortious, and physical means and methods involving threats, assaults, injuries, intimidation, and murder upon the persons, and the injury and destruction (known to said defendants and their said confederates and associates as 'sabotage,' 'direct action,' 'working on the public,' 'wearing the wooden shoes,' 'working the sab cat,' and 'slowing down tactics') of the property of such other classes, the forcible resistance to the execution of the laws of the United States, and the forcible, revolutionary overthrow of existing governmental authority in the United States, use of which said means and methods was to accompany and to be accomplished in part by local strikes, industrial strikes, and general strikes of such laborers, and use of all which said means and methods was to be made in reckless and utter disregard of the rights of all persons not associated with, or in sympathy with, the said defendants and their said purposes * * * and depicting as heroes and martyrs, Kate O'Hare, Eugene V. Debs, Hulet M. Wells, William D. Haywood, * * * referred to * * * as 'political prisoners,' which said crimes included the offenses of seditious conspiracy, and * * * violation of * * * the Espionage Act and other conspiracies to commit offenses against the United States.' 5. Repeats charges in 2, 3, and 4; and to promote the cause of its enemies; curtailment in essentials to the prosecution of the war.

6. To support Germany and Austria-Hungary, the countries with which the United States was at war.

7. To violate section 211 of the Penal Code (Comp. St. Sec. 10381) by sending through the mail printed matter 'of a character tending to incite arson, murder, or assassination.'

The defendants have demurred to each count on the ground that sufficient facts are not stated to constitute a crime; that neither of the overt acts has a tendency to effect the object of the conspiracy charged; that each of the overt acts was committed after actual hostilities in the World War ceased; that the indictment fails to set forth 'the certain seditious statements, articles, editorials, headlines, and printed matter calculated and intended by the defendants to accomplish the purpose therein charged'; that the Espionage Act is unconstitutional and violative of the First Amendment to the Constitution.

The constitutional objections are disposed of by the Supreme Court in Schenck v. U.S., 249 U.S. 47, 39 Sup.Ct. 247, 63 L.Ed. 470, and in Debs v. U.S., 249 U.S. 211, 39 Sup.Ct. 252, 63 L.Ed. 566. All of the other contentions can be disposed of together.

The charge in the several counts in the indictment is as broad as language can make it, and is limited only by the provisions of the Espionage Act, to violate which it is charged the conspiracy was formed. Section 37, supra, provides that 'if two or more persons conspire to commit an offense against the United States, * * * and one or more * * * parties do any act to effect the object of the conspiracy, each of the parties * * * ' shall be punished.

It has been uniformly held that to offend against a law of the United States is to offend against the United States. The gravamen of the crime charged is the conspiracy. At common law the crime was completed when the conspiracy was formed, and it was unnecessary to state the particular means by which the object was to be carried forward; the felonious intent being charged, the means to effect the enterprise was a matter of evidence upon the trial; the bare combination and agreement constituted the crime. 2 Bish. Criminal Practice, Secs. 207-8; 2 Bish. Cr. Law, 171-5; 191-3-8. Section 37 requires more than the mere agreement before the combination is brought into operative effect (Hyde v. Shine, 199 U.S. 62, 25 Sup.Ct. 760, 50 L.Ed. 90), and that is the overt act. Only one overt act need be established. Jones v. U.S., 179 F. 584, 103 C.C.A. 142; U.S. v. Cassidy (D.C.) 67 F. 698; U.S. v. Burkett (D.C.) 150 F. 213. The object of the statute in requiring an overt act is to afford a locus penitential, giving opportunity for meditation and abandoning of the enterprise (U.S. v. Britton, 108 U.S. 199, 2 Sup.Ct. 531, 27 L.Ed. 698; Hyde v. Shine, supra); nor is it necessary that the conspiracy should be successful (U.S. v. Cohn (C.C.) 142 F. 983; U.S. v. Curley, 130 F. 4, 64 C.C.A. 369). The vitalizing agency is the overt act to effect its object.

The contention that the indictment should set out the whole story, etc., is not well taken. It is well covered.

Chief Justice Fuller in Pettibone v. U.S., 148 U.S. 197, 13 Sup.Ct. 542, 37 L.Ed. 419, said--

'that when the criminality of the conspiracy consists in an unlawful agreement of two or more persons to compass or promote some criminal or illegal purpose, that purpose must be fully and clearly stated in the indictment; while if the criminality of the offense consists in the agreement to accomplish a purpose not in itself criminal or unlawful, by criminal or unlawful means, the means must be set out.'

The several counts in the indictment specifically state that the unlawful enterprise was to be effected through printing, publishing, speaking, etc., as set out in count 1. As to the objection that the overt acts set out are not an offense, and that they are insufficient to effect the crime, it may be said an innocent act, if wrongfully related, may serve the purpose of an overt act, if it tends to produce, to cause, to execute, to enforce, achieve, accomplish, or bring to pass the object of the conspiracy, which is a matter of proof, on the trial. In this case, however, each overt act set out consummates the plan, and, if offensive, is a completed crime, and, if not offensive, no crime is committed. If, as stated at bar, in argument, there are many more publications, such publications would not be a step or link in the chain which would effect, achieve, or accomplish the criminal conclusion of the charge, and could not be considered as overt acts. Overt acts must be proved as laid in the indictment. U.S. v. Newton (D.C.) 52 F. 275, at page 285. The other publications can only be considered to show intent as to the charges in issue.

The indictment is comprehensive, and ingeniously drawn, and, by general terms, in nearly every count the whole of section 3 of the Espionage Act is covered, but in each count reference is made, by specific statement, to parts of the section, and under the rule ejusdem generis the statement in each count must be held to that specifically enumerated, and from which appear the charges as stated.

It is not fatal to charge conspiracy to commit two or more offenses. Frohwerk v. U.S., 249 U.S. 204, 39 Sup.Ct 249, 63 L.Ed. 561. The serious question for decision in this case is: Shall the court consider the legal sufficiency of the overt acts, or is the statement that they were overt acts for 'executing said * * * conspiracy * * * as charged' sufficient? The government contends that is a matter for the jury. I am familiar with authorities so holding. The record in these cases distinguishes them from the facts here. There is no question, I think, if, after all of the evidence is presented, there is no testimony showing an...