Butler v. United States

• Decision Date: 30 November 1943
• Docket Number: No. 8338.,8338.
• Citation: 138 F.2d 977
• Parties: BUTLER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

138 F.2d 977 (1943)

BUTLER et al. v. UNITED STATES.

No. 8338.

Circuit Court of Appeals, Seventh Circuit.

November 30, 1943.

George L. Vaughn, of St. Louis, Mo., and Morris B. Chapman, of East St. Louis, Ill., for appellants.

Ray M. Foreman, of Danville, Ill., and Ernest R. McHale, Asst. U. S. Atty., of E. St. Louis, Ill., for appellee.

Before SPARKS, KERNER, and MINTON, Circuit Judges.

KERNER, Circuit Judge.

Defendants, General Lee Butler and David D. Erwin, appeal from a judgment of conviction entered by the court after a trial without a jury under an indictment in two counts. The first count charged them and the Pacific Movement of the Eastern World, Inc., and John Doe, a Japanese, with violating Section 34, Title 50 U.S.C.A., in that, the United States being at war, the defendants entered into a conspiracy to violate Section 33, Title 50 of the U.S.C.A., by wilfully causing and attempting to cause insubordination, disloyalty, mutiny, and refusal of duty in the military and naval forces of the United States. The second count charged them with conspiracy to violate the provisions of Section 11 of the Selective Training and Service Act of 1940, Title 50 Appendix, § 311, of the U.S.C.A.

The first count of the indictment in substance charges that for the purpose of obstructing the recruiting and enlistment service of the United States, the defendants, at meetings of the defendant Pacific Movement of the Eastern World, would make speeches to members of the military and naval forces of the United States and to persons liable for training and service under the Selective Training and Service Act of 1940, designed to mislead and corrupt the patriotic, loyal and law abiding population of the colored people of East St. Louis, Illinois. This count of the indictment alleges the substance of the speeches and sets forth overt acts in pursuance of and to effect the object of the conspiracy.

A large number of witnesses were heard and the evidence was conflicting in many respects. The trial judge to whom the law commits the determination of the credibility of the witnesses and of the weight to be accorded to the testimony, considered these conflicts in the evidence and found that both defendants co-operated to inculcate in the minds of the members of P.M.E.W. a belief that Japan would soon invade and conquer the United States and that Japan would be friendly to the colored people of America. They also encouraged the thought that the colored soldiers of America should not fight colored soldiers of other nations. The court concluded that the efforts of the defendants continued unabated after a state of war existed between the United States and Japan and that such representations of the defendants were intended to cause disloyalty and refusal of duty in the military and naval forces of the United States, and established a conspiracy as to each defendant. Under such circumstances we are bound to adopt the facts and all favorable inferences reasonably and naturally to be drawn therefrom in the light most favorable to the plaintiff.

The facts: The Pacific Movement of the Eastern World originated in the early part of 1933. It was incorporated under the laws of Missouri on September 23, 1933. Erwin was its president from 1934 until 1940 and thereafter was its national adviser. Butler was its president from 1940 to the latter part of 1942.

In 1933, one Satohato Takahashi, a Japanese, employed Policarpio Manansala, also known as Takis or DeGuzman, to promote the idea that Japan was the champion of the colored peoples of the world and of the negroes of the United States. Manansala also participated in the organization of the P.M.E.W. and spent several months in spreading such propaganda among the negroes in Chicago; he engaged in similar work in other cities until the latter part of 1935. The P.M.E.W. grew, and in September of 1938 it had a membership estimated at a million members. On September 11, 1938, a meeting of the P.M.E.W. was held at East St. Louis at which defendant Erwin made the principal address in which he stated that Japan had organized the P.M.E.W. and was the champion of all dark and colored races.

On June 18, 1939, a meeting of the P.M. E.W. was held at a hall in St. Louis, Missouri, at which Erwin introduced one Uyeda, a Japanese, who, in speaking to the audience, stated that the war between Japan and China might extend farther, and that some day the Little Angel from the East would come to America and liberate the black people from the yoke of the white man.

In the fall of 1939 Erwin stated that the Japanese had entrusted the development and activities of the P.M.E.W. to him. Thereafter he spent several months in working among the different branches of the P.M.E.W. and at these meetings he reiterated the statement that the Japanese were the champions of the negroes; that the Japanese would probably invade America; and that by joining the P.M.E.W. they members of the P.M.E.W. might be kept out of the War.

In 1939 Erwin became a district Bishop of the Triumph Church of the New Age and thereafter spent much of his time uniting branches of the P.M.E.W. to that Church. After December 8, 1941, in his talks to the members of the P.M.E.W., he said he had the power to make them ministers and that in the event they became ministers they would not be drafted for the armed services. Defendant Butler was present at most of the meetings at which Erwin made such statements and was ordained as a minister by Erwin on July 11, 1939. Erwin also ordained approximately one hundred other persons.

In July of 1941, in East St. Louis, one E. A. Brewster spoke at two meetings of the P.M.E.W. In introducing Brewster to the audience, Butler stated that he approved of whatever Brewster said and that the black race should follow Brewster's advice. In his address Brewster stated that eventually the white race would devour itself and the colored race would rule the world, and advised those interested in staying out of the war to communicate with him.

Thereafter, from January to May of 1942, meetings of the P.M.E.W. were held at East St. Louis and were attended by men registered under the Selective Training and Service Act, as well as by Erwin and Butler. At these meetings Erwin and Butler stated that Japan was the champion of the negroes; that the negroes should not go to war; that this was a white man's war; that Japan would invade and conquer the United States; that the negroes should join the P.M.E.W., so that upon invasion they would be protected; and that members of the P.M.E.W. as members of the Triumph Church of the New Age could escape being drafted by becoming ministers in Triumph Church.

The first question to be considered is defendants' contention that the trial court erred in admitting evidence bearing upon the activities of the P.M.E.W. and the defendants, and the utterances made by them prior to the existence of war between the United States and Japan. This evidence was admitted upon the theory that it had a bearing upon the "intent, state of mind, purpose and associations of the parties."

We think the evidence was properly admitted. Support for our opinion is found in many cases in which the identical question has arisen and been decided adversely to defendants.¹ It will suffice if we quote only from three of these cases.

In the Deason case, Deason v. United States, 5 Cir., 254 F. 259, the defendant was convicted of a violation of the Espionage Act. There, as here, it was claimed that the court had erred in the admission of evidence. In discussing the question, the court said: "Statements made by the defendant, indicating his hostility to the draft, whether made before or after they became punishable by the Espionage Act, * * * might serve to illustrate to the jury the purpose with which he made the threats alleged to have been made after the approval of the Espionage Act, and which were alone relied upon as a ground for conviction." 254 F. at page 260.

In the Schoborg case, Schoborg v. United States, 6 Cir., 264 F. 1, proof of other similar statements (not alleged in the indictment) was allowed to go to the jury as evidence of the intent with which the defendants spoke the words charged. Objection was made, because this amounted to proving other similar offenses, in violation of the familiar rule. The court at page 7 of 264 F. said: "We had occasion to consider this subject carefully, in Shea v. United States, 6 Cir., 236 F. 97, 102, * * *; it being there necessary to make an application of the exception, as familiar as the rule, which permits evidence of other crimes or offenses when the intent with which defendant acted in the matter charged is important, and when these...