Hammerschmidt v. United States

• Decision Date: 21 February 1923
• Docket Number: 3585.
• Citation: 287 F. 817
• Parties: HAMMERSCHMIDT et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

287 F. 817

HAMMERSCHMIDT et al. v. UNITED STATES.

No. 3585.

United States Court of Appeals, Sixth Circuit.

February 21, 1923

Edw. F Alexander, of Cincinnati, Ohio (Jos. W. Sharts, of Dayton Ohio, on the brief), for plaintiffs in error.

James R. Clark, Sp. Asst. Atty. Gen. (Thomas H. Morrow, U.S. Atty of Cincinnati, Ohio, on the brief), for the United States.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DONAHUE Circuit Judge.

The plaintiffs in error were jointly tried and convicted in the United States District Court on an indictment charging an unlawful conspiracy to defraud the United States by impairing, obstructing, and defeating the lawful function of the government of the United States, to wit, the registration for military service of all male persons between the ages of 21 and 30, both inclusive, as provided by the Act of Congress passed May 18, 1917 (Comp.St. 1918, Comp. St. Ann. Supp. 1919, Secs. 2044a-2044k), by printing or having printed and publishing, displaying, or causing to be published, displayed, and distributed, in various places and to various persons within the district in which said offense was alleged to have been committed, especially to male persons between the ages of 21 and 30, both inclusive, handbills, circulars, dodgers and other literature composed, printed, intended, and designed for the purpose of counseling, advising, aiding, and procuring said male persons to evade and refuse to obey the requirements of said act of Congress.

The indictment also contains a copy of one of 18,000 circulars, which copy reads as follows:

DOWN WITH CONSCRIPTION

The First Amendment to the Constitution.

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of SPEECH, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The 13th Amendment to the Constitution of the United States reads:

'Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States or any places subject to their jurisdiction.'

CONSCRIPTION IS THE WORST FORM OF INVOLUNTARY SERVITUDE

The conscription law which the Wilson administration intends to put into effect proposes that the young men of this nation shall be taken from their homes against their will, and sent to the trenches of France to murder and be murdered in the war over the commercial interests of the capitalist class.

Daniel Webster, one of the greatest American statesman, said this of conscription, in Congress of this county, December 9, 1814:

'Is this consistent with the character of a free government? Is this civil liberty? Is this the real character of our constitution? No, sir, it is not. The constitution is libeled, foully libeled. The people of this country have not established for themselves such a fabric of despotism. They have not purchased at a vast expense of their treasurers and their own blood a Magna Charta to be slaves. Where is it written in the constitution, in what article or section is it contained, that you may take children from their parents. . . compel them to fight the battles of any war in which the follies or the wickedness of the government may engage? Under what concealment has this power lain hidden which now for the first time comes forth, with a tremendous and baleful aspect to trample down and destroy the dearest right of personal liberty.'

Every man who is determined to uphold the 'dearest right of personal liberty,' every man who refuses to become a victim of the war declared by the government to protect the millions loaned the Allies by the capitalists of this country, should REFUSE TO REGISTER FOR CONSCRIPTION

Every Socialist party of Ohio has shown the way in the fight against conscription by adoption of this resolution:

'Resolved, by the Socialist Party in joint meeting assembled, that we denounce the law proposing 'involuntary servitude,' in violation of the thirteenth amendment of the constitution of the United States, in the form of conscription to murder our fellow human beings in other lands, and recommend to and urge all members of the party, and the workers generally that they refuse to register for conscription and pledge to them our financial and moral support in their refusal to become the victims of the ruling class.'

One of the millions of leaflets issued by the Socialist Party

SOCIALIST PARTY OF OHIO-- 1291 Cook Ave., Lakewood, O.

To this indictment the plaintiffs in error filed a plea in abatement, based upon irregularities in the selection of a grand jury.

The evidence offered on the hearing of this plea in abatement tends to prove that at the time the grand jury was drawn the jury box contained more than 700 names, in 18 different packages, each package containing from 40 to 50 names of persons eligible as jurors residing siding in one of the 18 counties of the district; that the grand jury was drawn without discrimination, from these several packages of names in the jury box by a deputy clerk of the District Court and a jury commissioner of opposite politics, in a room of the clerk's office between the outer office and the courtroom, and the same room in which practically the names of all jurors have usually been drawn.

The fact that the 700 or more names in the jury box were in 18 different packages does not sustain the contention that there were not more than 300 names in the jury box at the time the grand jury was drawn, but, on the contrary, the placing of a like number of names from each county in the district, in separate packages, is in furtherance of the provision of section 277 of the Judicial Code (Comp. St. Sec. 1254) that the jury shall be drawn from different parts of the district, so as to be most favorable to an impartial trial. U.S. v. M. & M. Transportation Co. (C.C.) 187 F. 355; U.S. v. Green (D.C.) 113 F. 683; U.S. v. Rondeau (C.C.) 16 F. 109; U.S. v. Munford (C.C.) 16 F. 164.

The evidence further tends to prove that the room in which this jury was drawn is a part of the public office of the clerk of the United States District Court in the Federal Building in Cincinnati, Ohio, to which room the public have access as a matter of right and not as a mere privilege, and that when a jury is being drawn the doors are open and people pass through and at times stop in and watch the drawing. No evidence was offered tending to prove that there was any attempt at secrecy in the drawing of this grand jury, or that there was any fraudulent intent and purpose on the part of the officials drawing the same to prevent the public or any individual member of the public from being present when the drawing was made. Stockslager v. U.S., 116 F. 590, 54 C.C.A. 46; U.S. v. Rondeau (C.C.) 16 F. 109.

It is further contended that the deputy clerk of court has no authority to act with a jury commissioner of opposite politics in the drawing of a jury. Section 276 of the Judicial Code, as amended February 3, 1917 (39 Stat. 873 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 1253)), specifically provides that this official duty may be performed either by the clerk of the court or a duly qualified deputy.

It is also insisted that the trial court erred in overruling the demurrer to the indictment. The Act of Congress of May 18, 1917, authorized the President of the United States to increase, temporarily, the military establishment of the United States. In pursuance of the authority conferred by this statute the government required the registration for military service of all male citizens between the ages of 21 and 30, both inclusive. This indictment charges these defendants with a conspiracy to defraud the United States, by impairing, obstructing, and defeating this lawful function of the government of the United States, and avers in clear and unambiguous language the methods and means employed or to be employed by the defendants and the overt acts that had been committed by the defendants in furtherance of the unlawful purposes of the conspiracy charged. So far as appears by this indictment, the persons charged with this conspiracy did not come within the class of persons that were required to register for military purposes, and as such entitled to challenge the constitutionality of the government order in a court of competent jurisdiction. On the contrary, it is averred that in furtherance of the unlawful purpose of the conspiracy charged in the indictment, by impairing, obstructing, and defeating the lawful function of the government, these defendants sought to induce other persons required to register, by promises of moral and financial aid, to resist and defy the United States in the exercise of this governmental function.

A conspiracy to defraud the United States, within the meaning of section 37 of the Criminal Code (Comp. St. Sec. 10201), does not necessarily involve a direct loss to the United States in money or property, but includes a conspiracy to impair, obstruct, or defeat the lawful function of any department of the government. Haas v. Henkel, 216 U.S. 462, 30 Sup.Ct. 249, 54 L.Ed. 569, 17 Ann.Cas. 1112; U.S. v. Galleanni (D.C.) 245 F. 977; Firth v.U.S., 253 F. 36, 165 C.C.A. 56; Curley v.U.S., 130 F. 1, 64 C.C.A. 369; Sugar v. U.S., 252 F. 79, 164 C.C.A. 191; U.S. v. Sacks, 257 U.S. 37, 42 Sup.Ct. 38, 66 L.Ed. 118; U.S. v. Janowitz, 257 U.S. 42, 42 Sup.Ct. 40, 66 L.Ed. 120.

It is claimed on behalf of the plaintiff in error that Haas v Henkel involved fraud on the part of officials of the government, and that in the case at bar no such question is presented. However that may be, the sufficiency of each of the four...