Daeche v. United States

• Decision Date: 14 March 1918
• Docket Number: 12.
• Citation: 250 F. 566
• Parties: DAECHE v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

250 F. 566

DAECHE v. UNITED STATES.

No. 12.

United States Court of Appeals, Second Circuit.

March 14, 1918

Pratt Koehler & Boyle, of New York City (Addison S. Pratt, of New York City, of counsel), for plaintiff in error.

Francis G. Caffey, U.S. Atty., John C. Knox, Asst. U.S. Atty., and Leo L. Leventritt, Sp. Asst. U.S. Atty., all of New York City.

Writ of error to a judgment of conviction, entered on the 9th day of May, 1916, upon the verdict of a jury rendered on the previous day upon two indictments.

The first indictment alleged that the defendant, with certain others, to wit, Fay, Scholz, Bronkhorst, Breitung, and Kniezle, between the 1st day of June and the 21st day of October, 1915, entered into a conspiracy maliciously to attack and set upon certain vessels within the waters of the United States by surprise and open force, with intent unlawfully to depoil the owners thereof of certain shells ammunition, and other munitions of war by contriving certain bombs to be secretly fastened to the sterns of the said vessels in such wise that they should explode and destroy them or so disable them as to render them unable to proceed to their respective destinations by which the owners of the munitions should be despoiled thereof. The indictment therein set forth various overt acts in pursuance of the conspiracy.

The second indictment alleged that the defendant and the same persons entered into a conspiracy to destroy vessels about to sail from the port of New York with intent to injure those persons who should have underwritten policies of insurance upon the same and upon their cargo, and that the said conspiracy was to be effectuated by use of the same bombs.

Upon the trial it appeared that the defendants Fay and Scholz had been engaged in a plan to prepare metal boxes to be filled with high explosives and attached to the sterns of ships which should leave the port of New York loaded with munitions for the Allies in the Great War. The bombs contained a mechanism by which, as the rudder of the ship moved from side to side, it would compress a spring. When the spring had been enough compressed, it would be released, and the release would explode the bomb, blowing off the stern of the ship, or at least doing great damage to the after part, and either rendering her helpless or sinking her. This scheme was frustrated by discovery of the police and all the defendants were arrested. At the time of their arrest and under circumstances which permitted the confessions to be used they each confessed before the police officers their share in the plan.

The defendant, whose confession alone is material here, said that he was a German, who had been here several years to learn a trade and was about to leave for his country at the outbreak of the war. Fay, who was an officer in the German army and had come over here to do what he could for the assistance of his country, told him that he had a plan by which he could blow off the stern of ships of the Allies carrying munitions to Europe. The chief purpose was to make the insurance rates higher. Fay told the defendant that for this purpose he needed a high explosive and deputed him to try to get the necessary dynamite, for this purpose giving him seventeen dollars. It was proved independently that the defendant had gone first to New Haven and afterwards to Bridgeport and there inquired of one Zinkernagel where he could obtain some explosives. Zinkernagel told him that he did not know where he could get any, that New York would be the best place. At the end of this interview the defendant sent a telegram to Scholz, one of the defendants, making an appointment with him in New York that night. Defendant went to New York and the next day appeared at the office of one Liebau. There he met Scholz, the defendant, and on Lauter. Meanwhile, Zinkernagel had sent to the defendant as he had promised, an article by one Vatterrodt upon the production of trinitrotoluol and on a subsequent interview at Liebau's the defendant asked Liebau for the address of Vatterrodt. There was other proof showing interviews between Scholz and Fay and the defendant, but aside from the foregoing there was substantially no corroboration outside of the confession. There was ample evidence, however, to justify the conclusion of the jury that Fay and Scholz were concerned in such a plan as was set forth in the indictment.

It was not shown that any of the ships to be blown up were in fact themselves insured, or that the defendants' purpose was other than to raise the insurance rates by generally increasing the danger to all shipping leaving the port of New York. The jury returned a verdict of guilty upon each indictment and the defendant was sentenced upon each verdict concurrently.

The points raised by the defendants on this writ of error were: That the proof did not support either indictment; second, that there was not sufficient corroboration of the defendant's confession to justify a case to the jury; and, third, that the court had committed error in its charge and in its refusal to charge. That part of the charge complained of was as follows: 'It' (the conspiracy) 'may be proved by direct evidence, such as the confessions of the defendant or by the proof of facts from which you can fairly infer the existence of the conspiracy which is called 'circumstantial evidence.' ' The request refused was as follows: 'I also except to your honor's charge where your honor said that the conspiracy may be proved by direct evidence, such as the confession of the defendant, and ask your honor to charge that if the proof of the conspiracy rests solely on the confession there can be no conviction unless there is independent evidence of the fact of the conspiracy outside of the confessions.'

The first indictment was laid under section 37 of the Criminal Code, forbidding any conspiracy to commit any offense against the United States. The offense contemplated in this indictment was under section 298 of the Criminal Code, as follows:

'Whoever, upon the high seas or on any other waters within the admiralty and maritime jurisdiction of the United States, by surprise or by open force, maliciously attacks or sets upon any vessel belonging to another, with an intent unlawfully to plunder the same, or to despoil any owner thereof of any moneys, goods, or merchandise laden on board thereof, shall be fined not more than five thousand dollars and imprisoned not more than ten years.'

The second indictment was laid under section 296 of the Criminal Code, as follows:

'Whoever, on the high seas, or within the United States, willfully and corruptly conspires, combines, and confederates with any other persons, such other person being either within or without the United States, to cast away or otherwise destroy any vessel, with intent to injure any person that may have underwritten or may thereafter underwrite any policy of insurance thereon or on goods on board thereof, or with intent to injure any person that he has lent or advanced, or may lend or advance, any money on such vessel on bottomry or respondentia; or whoever, within the United States, builds, or fits out, or aids in building or fitting out, any vessel with intent that the same be cast away or destroyed, with the intent hereinbefore mentioned, shall be fined not more than ten thousand dollars and imprisoned not more than ten years.'

Before WARD and HOUGH, Circuit Judges, and LEARNED HAND, District judge.

LEARNED HAND, District Judge (after stating the facts as above).

We think that there was no case made out under the indictment for conspiracy to injure underwriters. Section 296 of the Criminal Code. The proof was of a purpose to raise the rates of insurance, a purpose not involving the existence of any insurance upon the vessels injured, and as well fulfilled if the increased dangers were made manifest upon those uninsured as upon those insured. Where the crime involves, as here, a specific intent, the existence of the intent must be proved as an independent fact, the state of mind prescribed in the statute. That state of mind is not proved by showing that the defendants had reason to suppose that the ships attacked might well be insured. Such knowledge would, it is true, be enough to charge them with the consequences of their acts though the definition of the crime included those consequences, but it is not the equivalent of an intent to produce those consequences. Such an intent involves the belief that the consequences will in fact follow upon the acts. This the government made no attempt to prove.

A verdict was taken on both indictments, and our conclusions as to that under section 296 need not, therefore, affect the sentence if the proof was sufficient upon the other. We think it was. The question is in two parts: First, whether the ship was to be attacked or set upon; second, of the specific intent. As respects the first point, the defendant correctly argues that a conspiracy to commit a crime over which the United States has no jurisdiction cannot itself be a crime against the United States under section 37, however it may have been at common...