325 U.S. 1 (1945), 13, Cramer v. United States

Docket Nº:No. 13
Citation:325 U.S. 1, 65 S.Ct. 918, 89 L.Ed. 1441
Party Name:Cramer v. United States
Case Date:April 23, 1945
Court:United States Supreme Court

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325 U.S. 1 (1945)

65 S.Ct. 918, 89 L.Ed. 1441



United States

No. 13

United States Supreme Court

April 23, 1945

Argued March 9, 1944

Reargued November 6, 1944




1. In a prosecution upon an indictment charging treason by adhering to enemies of the United States, giving them aid and comfort, in violation of § 1 of the Criminal Code, the overt act relied on, of which the Constitution requires proof by two witnesses, must be at least an act of the accused sufficient, in its setting, to sustain a finding that the accused actually gave aid and comfort to the enemy. P. 34.

2. The protection of the two-witness rule of the Constitution in such case extends at least to all acts of the defendant which are used to draw incriminating inferences that aid and comfort have been given. P. 33.

3. In a prosecution upon an indictment charging treason by adhering to enemies of the United States, giving them aid and comfort, in violation of § 1 of the Criminal Code, two of the overt acts alleged and relied on were:

1. Anthony Cramer, the defendant herein, on or about June 23, 1942, at the Southern District of New York and within the jurisdiction of this Court, did meet with Werner Thiel and Edward John Kerling, enemies of the United States, at the Twin Oaks Inn at Lexington Avenue and 44th Street, in the City and New York, and did confer, treat, and counsel with said Werner Thiel

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and Edward John Kerling for a period of time for the purpose of giving and with intent to give aid and comfort to said enemies, Werner Thiel and Edward John Kerling.

2. Anthony Cramer, the defendant herein, on or about June 23, 1942, at the Southern District of New York and within the jurisdiction of this Court, did accompany, confer, treat, and counsel with Werner Thiel, an enemy of the United States, for a period of time at the Twin Oaks Inn at Lexington Avenue and 44th Street, and at Thompson's Cafeteria on 42nd Street between Lexington and Vanderbilt Avenues, both in the City and New York, for the purpose of giving and with intent to give aid and comfort to said enemy, Werner Thiel.

By direct testimony of two or more witnesses, it was established that Cramer met Thiel and Kerling on the occasions and at the places charged; that they drank together, and that they engaged long and earnestly in conversation. There was no proof by two witnesses of what they said, or in what language they conversed; no showing that Cramer gave them any information whatever of value to their mission, or that he had any to give; no showing of any effort at secrecy, they having met in public places, and no evidence that Cramer furnished them shelter, sustenance, or supplies, or that he gave them encouragement or counsel, or even paid for their drinks.

Held: that overt acts 1 and 2 as proved were insufficient to support a finding that the accused had given aid and comfort to the enemy, and therefore insufficient to support a judgment of conviction. Pp. 36-37, 48.

137 F.2d 888 reversed.

Certiorari, 320 U.S. 730, to review the affirmance of a judgment of conviction of treason.

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JACKSON, J., lead opinion

MR. JUSTICE JACKSON delivered the opinion of the Court.

Anthony Cramer, the petitioner, stands convicted of violating Section 1 of the Criminal Code, which provides:

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason.1

Cramer owed allegiance to the United States. A German by birth, he had been a resident of the United States since 1925, and was naturalized in 1936. Prosecution resulted from his association with two of the German saboteurs who, in June, 1942, landed on our shores from enemy submarines to disrupt industry in the United States and whose cases we considered in Ex parte Quirin, 317 U.S. 1. One of those, spared from execution, appeared as a government witness on the trial of Cramer. He testified that Werner Thiel and Edward Kerling were members of that sabotage crew, detailed their plot, and described their preparations for its consummation.

Cramer was conscripted into and served in the German Army against the United States in 1918. After the war, he came to [65 S.Ct. 920] this country, intending to remain permanently. So far as appears, he has been of good behavior, never before in trouble with the law. He was studious and intelligent, earning $45 a week for work in a boiler room, and living accordingly.

There was no evidence, and the Government makes no claim, that he had foreknowledge that the saboteurs were coming to this country, or that he came into association with them by prearrangement. Cramer, however, had known intimately the saboteur Werner Thiel while the latter lived in this country. They had worked together,

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roomed together, and jointly had ventured in a small and luckless delicatessen enterprise. Thiel early and frankly avowed adherence to the National Socialist movement in Germany; he foresaw the war, and returned in 1941 for the purpose of helping Germany. Cramer did not do so. How much he sympathized with the doctrines of the Nazi Party is not clear. He became at one time, in Indiana, a member and officer of the Friends of New Germany, which was a predecessor of the Bund. However, he withdrew in 1935, before it became the Bund. He says there was some swindle about it that he did not like, and also that he did not like their drilling and "radical activities." In 1936, he made a trip to Germany, attended the Olympic Games, and saw some of the Bundsmen from this country who went there at that time for conferences with Nazi Party officials. There is no suggestion that Cramer, while there, had any such associations. He does not appear to have been regarded as a person of that consequence. His friends and associates in this country were largely German. His social life in New York City, where he recently had lived, seems to have been centered around Kolping House, a German-Catholic recreational center.

Cramer retained a strong affection for his fatherland. He corresponded in German with his family and friends there. Before the United States entered the war, he expressed strong sympathy with Germany in its conflict with other European powers. Before the attack upon Pearl Harbor, Cramer openly opposed participation by this country in the war against Germany. He refused to work on war materials. He expressed concern about being drafted into our army and "misused" for purposes of "world conquest." There is no proof, however, except for the matter charged in the indictment, of any act or utterance disloyal to this country after we entered the war.

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Coming down to the time of the alleged treason, the main facts, as related on the witness stand by Cramer, are not seriously in dispute. He was living in New York, and, in response to a cryptic note left under his door, which did not mention Thiel, he went to the Grand Central Station. There, Thiel appeared. Cramer had supposed that Thiel was in Germany, knowing that he had left the United States shortly before the war to go there. Together, they went to public places and had some drinks. Cramer denies that Thiel revealed his mission of sabotage. Cramer said to Thiel that he must have come to America by submarine, but Thiel refused to confirm it, although his attitude increased Cramer's suspicion. Thiel promised to tell later how he came to this country. Thiel asked about a girl who was a mutual acquaintance and whom Thiel had engaged to marry previous to his going to Germany. Cramer knew where she was, and offered to and did write to her to come to New York, without disclosing in the letter that Thiel had arrived. Thiel said that he had in his possession about $3,600, but did not disclose that it was provided by the German Government, saying only that one could get money in Germany if he had the right connections. Thiel owed Cramer an old debt of $200. He gave Cramer his money belt containing some $3,600, from which Cramer was to be paid. Cramer agreed to and did place the rest in his own safe deposit box, except a sum which he kept in his room in case Thiel should want it quickly.

After the second of these meetings, Thiel and Kerling, who was present briefly at one meeting, were arrested. Cramer's expectation of meeting Thiel later and of bringing him and his fiancee together was foiled. Shortly thereafter, Cramer was arrested, tried, and found guilty. The trial judge at the time of sentencing said:

I shall not impose the maximum penalty of death. It does not appear that this defendant Cramer was aware

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that Thiel and Kerling were in possession of explosives or other means for destroying factories and [65 S.Ct. 921] property in the United States, or planned to do that.

From the evidence, it appears that Cramer had no more guilty knowledge of any subversive purposes on the part of Thiel or Kerling than a vague idea that they came here for the purpose of organizing pro-German propaganda and agitation. If there were any proof that they had confided in him what their real purposes were, or that he knew, or believed what they really were, I should not hesitate to impose the death penalty.

Cramer's case raises questions as to application of the Constitutional provision that

Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.2

Cramer's contention may be well stated in words of Judge Learned Hand in United States v. Robinson:3

Nevertheless, a question may indeed be raised whether the prosecution may lay as an overt act a step taken in...

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