Dierkes v. United States

• Decision Date: 07 June 1921
• Docket Number: 3362.
• Parties: DIERKES v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

274 F. 75

DIERKES v. UNITED STATES.

No. 3362.

United States Court of Appeals, Sixth Circuit.

June 7, 1921

Froome Morris, of Cincinnati, Ohio, and Fred W. Schmitz, of Covington, Ky. (Sherman T. McPherson and Edward H. Brink both of Cincinnati, Ohio, on the brief), for plaintiff in error.

James R. Clark, U.S. Atty., and Thomas H. Morrow, Asst. U.S. Atty both of Cincinnati, Ohio.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

KNAPPEN Circuit Judge.

Plaintiff in error was convicted upon the second and third counts of an indictment under section 3 of the Espionage Act of June 15 1917 (40 Stat.c. 30, p. 217), as amended by the Act of May 16, 1918 (40 Stat.c. 75, p. 553 (Comp. St. 1918, Comp. St Ann. Supp. 1919, Sec. 10212c)). Each of these counts charged defendant with uttering, while the United States was at war with Germany and Austria, certain language, which in the second count is characterized as 'disloyal * * * scurrilous, and abusive,' and 'about the military forces of the United States,' and in the third count as 'intended to bring the military and naval forces of the United States into contempt, scorn, contumely, and disrepute. ' The alleged errors presented relate to the sufficiency of the indictment, the sufficiency of the proof, the admission of testimony, and the charge of the court.

1. The alleged insufficiency of the indictment was presented by demurrer, which was overruled, and, after verdict, by motions for new trial and in arrest of judgment both of which were denied. The language, which is the subject of the indictment, was alleged therein to have been spoken 'in the hearing and presence of divers persons,' and was this:

'The poor slob-- I feel sorry for him. I would rather serve a term in the penitentiary than wear a uniform in Wilson's Wall Street war. Mohr would look like hell toting a gun in Wilson's Wall Street war.'

The sufficiency of the indictment is challenged (a) as failing to state the person or persons to whom the words set out in the indictment were spoken; (b) in that the words so set out are not violative of the statute, because incapable of being construed as either disloyal or profane, scurrilous, or abusive, when spoken about the military forces of the United States, or so construable as to bring the military and naval forces of the United States into contempt, scorn, contumely, and disrepute; (c) that the words in question are protected by the First Amendment to the Constitution of the United States; and (d) that each count fails to charge a criminal intent.

The general rules as to the sufficiency of indictments are that the charge must be definite enough to enable the accused to make his defense and avail himself of the record of conviction or acquittal for his protection against further prosecutions, and to inform the court of the facts charged, so that it may decide as to their sufficiency in law to support a conviction, if one be had. The elements of the offense must be set forth with reasonable particularity of time, place, and circumstances. And while it is not always enough to charge a statutory offense in the language of the statute, yet, in general:

'An indictment which distinctly and clearly charges each and every element of the offense intended to be charged, and distinctly advises the defendant of what he is to meet at the trial is sufficient. ' Armour v. United States, 209 U.S. 56, 83, 84, 28 Sup.Ct. 428, 52 L.Ed. 681.

And generally:

'Upon an indictment for a statutory offense the offense may be described in the words of the statute, and it is for the defendant to show that greater particularity is required by reason of the omission from the statute of some element of the offense. ' Ledbetter v. United States, 170 U.S. 606, 612, 18 Sup.Ct. 774, 42 L.Ed. 1162; Armour v. United States, supra, 209 U.S.at page 84, 28 Sup.Ct. 428, 52 L.Ed. 681.

The statute here in question completely defines the offense, and the indictment before us follows the language of the statute, and omits no element of the offense there defined and denounced. It was not necessary that the indictment set forth the circumstances and setting within which the words were uttered. Whether the language charged to have been used by defendant had a natural tendency to show the commission of the unlawful act charged was ultimately a question for the jury. Pierce v. United States, 252 U.S. 239, 244, 249, 250, 40 Sup.Ct. 205, 64 L.Ed. 542. At the very least, it cannot be said, as matter of law, that the language set out is, in appropriate environment, incapable of being reasonably construed as disloyal as to the military forces of the United States, and such as to bring those forces into contumely and disrepute, having in mind that the United States was then at war, and that President Wilson was, by virtue of such office, commander-in-chief of the army and navy of the United States.

The proposition that the language used is protected by the First Amendment to the Constitution is, in our opinion, answered by what is said in Schenck v. United States, 249 U.S. 47, 52, 39 Sup.Ct. 247, 63 L.Ed. 470; Frohwerk v. United States, 249 U.S. 204, 206, 39 Sup.Ct. 249, 63 L.Ed. 561; Abrams v. United States, 250 U.S.at pages 618, 619, 40 Sup.Ct. 17, 63 L.Ed. 1173; Wimmer v. United States, (C.C.A. 6) 264 F. 11, 12, 14.

Of the objection that neither count charges a criminal intent it would seem enough to say that the clauses of the statute charged to have been violated (which were added by the amendment of 1918, for the purpose of broadening the scope of the statute) do not in express terms require a criminal intent, except as the word 'intended' is used in the clause involved in the third count, and which is so charged therein. It is sufficient that the language be disloyal, profane, scurrilous, or abusive, that it be willfully used, and that it relate to the form of government, the Constitution, the military or naval forces, the flag or the uniform of the army and navy of the United States, or that the language is intended to bring any one of them into contumely or disrepute. ^[1] The words 'willfully and feloniously' prima facie import an unlawful intent. Pierce v. United States, supra, 252 U.S.at page 244, 40 Sup.Ct. 205, 64 L.Ed. 542. Comparatively little help is to be had from decisions under section 3 of the act as originally passed, which was limited to specific intent to interfere with military operations, or actual attempt to cause mutiny, or actual obstruction of recruiting or enlistment

The indictment was therefore not subject to demurrer, unless for failure to state the name of the person or persons to whom the language set out in the indictment was addressed. In our opinion this omission was not fatal. While it is the general rule that the name of one injured either in his person or property by the act of the accused, or one whose identity is essential for the proper description of the offense should be stated in the indictment if known, or if not known, the failure to state it should be excused by the averment that it is not known; yet it is not usually necessary to state the names of persons only indirectly connected with the offense. Clark's Criminal Procedure, Sec. 9. But whatever may be the decisions elsewhere, under the rule prevailing in the federal courts (where the practice of requiring bills of particulars is so thoroughly settled), we think the omission of the name of the person in whose presence the language in question was uttered does not vitiate the indictment. Kirby v. United States, 174 U.S. 47, 63, 19 Sup.Ct. 574, 580, 43 L.Ed. 890. ^[2] In the Kirby Case, which was a prosecution for feloniously receiving and possessing stolen postage stamps, with intent to convert them to the use of the accused, the objection that the indictment did not show from whom the accused received the stamps, nor state that the name of such person was unknown to the grand jurors, was held not well taken. After citing authorities to the proposition that the offense is not the receiving of stolen goods from any particular person, but receiving them knowing them to have been stolen, Mr. Justice Harlan said:

'We therefore think that the objection that the indictment does not show from whom the accused received the stamps, nor state that the name of such person was unknown to the grand jurors, is not well taken. If the stamps were in fact stolen from the United States, and if they were received by the accused, no matter from whom, with the intent to convert them to his own use or gain, and knowing that they had been stolen from the United States, he could be found guilty of the crime charged, even if it were not shown by the evidence from whom he received the stamps.'

As applied to the instant case, it is not, as matter of law, material in whose presence the alleged offending words were spoken. It is only necessary that they be spoken in the presence and hearing of some person or persons. As said by Mr. Justice Harlan, following what has just been quoted:

'This rule cannot work injustice nor deprive the accused of any substantial right. If it appears at the trial to be essential in the preparation of his defense that he should know the name of the person from whom the government expected to prove that he received the stolen property, it would be in the power of the court to require the prosecution to give a bill of particulars.'

That there is in the courts of the United States a well-settled practice of requiring and giving bills of particulars in criminal cases, for the purpose of informing a defendant with respect to time, place, and other details, and thus to enable him to meet the charge, appears by these further citations Rosen v. United States, 161 U.S. 29, 34, 16 Sup.Ct. 434, 480...