Coldwell v. United States

• Decision Date: 27 March 1919
• Docket Number: 1360.
• Citation: 256 F. 805
• Parties: COLDWELL v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

256 F. 805

COLDWELL v. UNITED STATES.

No. 1360.

United States Court of Appeals, First Circuit.

March 27, 1919

Anthony V. Pettine, of Providence, R.I. (Luigi de Pasquale, of Providence, R.I., on the brief), for plaintiff in error.

Harvey A. Baker, U.S. Atty., of Providence, R.I.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

JOHNSON Circuit Judge.

Joseph M. Coldwell, the defendant below, was indicted and convicted in the District Court of Rhode Island, under title 1, Sec. 3 of the act of Congress approved June 15, 1917, c. 30, 40 Stat. 219, known as the Espionage Act (Comp. St. 1918, Sec 10212c), which is as follows:

'Sec 3. Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies and whoever, when the United States is at war, shall wilfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall wilfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both.'

The indictment contained eight counts and he was tried on the first four. He was charged in two counts with willfully attempting to cause insubordination, disloyalty, mutiny, and refusal of duty in the military and naval forces of the United States, and in two other counts with willfully obstructing the recruiting and enlistment service of the United States, by making the following statements in addressing a public meeting held in the People's Forum at Providence, R.I., on the 13th day of January, 1918, the United States being then at war with the Imperial German Government, in the presence and hearing of 500 persons to the grand jurors unknown: 'Dunn, Yanyar, and Hiller, who are to serve 20 years in the Atlanta penitentiary, are victims of a damnable system of government, for which those who support it are directly responsible.'

'Law is of no avail now. It sleeps in America during the war. Dunn, Yanyar, and Hiller are guilty of no crimes. They merely refused to become uniformed murderers.'

In a long parenthesis, in the way of innuendo, it was set out in each count that John T. Dunn, Theodore Hiller, and Adolph Fred Yanyar, residents of Rhode Island, were on the 5th day of June, 1917, between the ages of 21 and 30, both inclusive, and required by law to register under the provisions of Act May 18, 1917, c. 15, 40 Stat. 76 (Comp. St. 1918, Secs. 2019a, 2019b, 2044a-2044k), the proclamation of the President, and regulations issued by the President thereunder, and became members of the United States army by virtue of the provisions of the act of May 18, 1917, and the regulations issued thereunder by the President; that they refused to serve as soldiers in the United States army, and were tried for desertion from the service of the United States, before a general court-martial of the United States army, and convicted and sentenced to be dishonorably discharged from the service and to forfeit all pay and allowances due and to become due, and to be confined at hard labor at such place as the reviewing authority might direct, for 20 years; and that the sentence of said court-martial was duly approved, and the United States penitentiary at Atlanta, Ga., designated as the place of confinement. The necessary intent was alleged in each count.

To each of the counts in the indictment the defendant filed a demurrer, assigning in each the following grounds:

First. That the facts therein set forth are not in violation of section 3 of the Espionage Act, so called.

Second. That it does not appear in said count that the divers persons whom the said defendant is alleged to have addressed were persons in the military or naval forces of the United States.

Third. That it does not appear in said count that the alleged utterances of the said defendant caused any injury to the military or naval service and to the United States.

Fourth. That said count of said indictment does not set out facts which constitute any offense against the laws of the United States.

Fifth. That said count of said indictment charges no offense known to the law.

The demurrers were overruled, and at the trial a motion to quash the indictment for the causes assigned in the demurrers was filed, which was denied. At the close of the testimony the defendant moved the direction of a verdict of acquittal for the following reasons:

That the government had failed to show any facts in violation of section 3 of the Espionage Act, so called, or that any person addressed by the said defendant was in the military or naval service of the United States, or that the alleged utterances of the said defendant caused any injury to the military or naval service or to the United States, or that the alleged utterances were made with the intent charged in the indictment; that there was a variance between the proof and the allegations in the indictment, in that the indictment alleged that the utterances were made 'in addressing a public meeting in said Providence, at which said meeting a large number of persons, to wit, five hundred, were present whose names are to the grand jurors unknown,' whereas, in truth and as a matter of fact, the government proved that the persons were actually known to the grand jurors.

This motion was denied, and the defendant, having been found guilty by the jury on the first four counts in the indictment, was sentenced to serve a term of imprisonment of three years at hard labor in the United States penitentiary at Atlanta, Ga., on each count, said terms to run concurrently.

The defendant seasonably excepted to the overruling of his demurrers, the denial of his motions, and the admission of evidence relating to the circulation by him of certain circulars prior to the passage of the Espionage Act, and these rulings are assigned as error. No error is assigned because of any instructions given in the charge of the presiding judge to the jury, and at its close counsel for the plaintiff in error said he was perfectly satisfied with it. The evidence upon which the jury returned their verdict of guilty has not been reported. The court submitted to them the determination of whether the words were spoken substantially as alleged, and, if so, whether they were adapted to create the offenses charged, and also the intent with which they were uttered; and we must accept the verdict of the jury in favor of the government on these issues as fully sustained by the evidence, provided the allegations in the indictment were sufficient in law to sustain it.

The first ground of demurrer is that the facts set forth do not constitute a violation of section 3 of the Espionage Act. This act was amended on May 16, 1918, by adding thereto the following:

'Whoever, when the United States is at war, shall wilfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag of the United States, or the uniform of the army or navy of the United States, or any language intended to bring the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag of the United States, or the uniform of the army or navy of the United States into contempt, scorn, contumely or disrepute. ' Chapter 75, Sec. 1 (Comp. St. 1918, Sec. 10212c).

It is contended in argument that, as the defendant was charged with uttering the words set out in the indictment, before the passage of this amendment, this is proof that, without it, the alleged utterances would not be penal. The amendment, however, does not relate to the offenses with which the defendant was charged, but to other and distinct offenses, which may be committed by utterances in regard to the form of government of the United States, the military or naval forces or the flag of the United States, or the uniform of the army or navy of the United States, or by language intended to bring the form of government of the United States, the military and naval forces, the flag, or the uniform, into contempt, scorn, contumely, or disrepute.

The system of government to which the alleged statements of the defendant related was plainly the system of raising an army which had been provided by the Conscription Act, passed by Congress, and the regulations promulgated by the President by authority of that act. The characterization of that act and these regulations as 'a damnable system of government,' and of those who had been sentenced because of violation of...