Doe v. United States

• Decision Date: 28 October 1918
• Docket Number: 5197.,5196
• Parties: DOE v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

253 F. 903

DOE v. UNITED STATES.

Nos. 5196, 5197.

United States Court of Appeals, Eighth Circuit.

October 28, 1918

F. T Johnson, of Denver, Colo. (S. H. Johnson, of Denver, Colo on the brief), for plaintiff in error.

Harry B. Tedrow, U.S. Atty., of Denver, Colo.

Before CARLAND and STONE, Circuit Judges, and ELLIOTT, District Judge.

CARLAND Circuit Judge.

Doe was charged in two indictments, No. 3105 and No. 3106, with violating section 3, title 1, and section 3, title 12, Act of Congress June 15, 1917 (40 Stat. 217, c. 30). Each indictment contained three counts. The indictments were consolidated for the purpose of trial, and the defendant was found guilty upon each count, and a general judgment was entered on each indictment; the sentences of imprisonment to run concurrently. The indictment was attacked by demurrer and motion in arrest, on the ground that neither of the counts of the indictments stated facts sufficient to constitute an offense against the United States. The third count of indictment 3105 was in the following language:

'That said Perley B. Doe, on, to wit, November 26, A.D. 1917, at the city and county of Denver, in the state and district of Colorado, and within the jurisdiction of this court, the United States then and there being at war with the Imperial German Government, pursuant to a joint resolution of the Congress of the United States, approved by the President of the United States April 6, 1917, did feloniously and willfully obstruct the recruiting and enlistment service of the United States, to the injury of the said service, and to the injury of the United States, in that he, said Perley B. Doe, did then and there deposit and cause to be deposited in the post office of the United States at said city and county of Denver, and thereby cause the post office establishment of the United States to deliver to the Lutheran Church, South Logan and Dakota streets, Denver, Colorado, and divers persons to the grand jurors unknown, a certain circular, and circulars, which said circular and circulars were in words and figures identical with the words and figures of the statement set forth in the first count of this indictment, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.'

The circular referred to in said count is as follows:

'In his war message, April 2, Wilson spoke of Germany's 'promise' to end the U-boat warfare. At Madison Barracks Lansing said: 'The immediate cause of war was the announced purpose of Germany to break its promise as to submarine warfare.'

'Germany never made any such promise. In the note of May 4, 1916, containing the so-called promise, Germany carefully stated that as to the future she must 'reserve itself complete liberty of decision.'

'For brief but adequate statement of diplomatic notes that led to war send to your Congressman for La Follette's speech of April 4, 1917, which was suppressed.

'Endless chain. Please write at least one copy and send this and that to friends of immediate peace.'

The fact that the first count may have been bad in no way affects the propriety of referring to it to save repetition. Blitz v. United States, 153 U.S. 308, 14 Sup.Ct. 924, 38 L.Ed. 725; Crain v. United States, 162 U.S. 625, 16 Sup.Ct. 952, 40 L.Ed. 1097.

Where a verdict of guilty is rendered upon all the counts of an indictment, and the sentence imposed does not exceed that which might properly have been imposed upon conviction under any single count, such sentence is good, if any such count is sufficient. Claassen v. United States, 142 U.S. 140, 12 Sup.Ct. 169, 35 L.Ed. 966; Evans v. United States, 153 U.S. 584, 14 Sup.Ct. 934, 38 L.Ed. 830; Ballew v. United States, 160 U.S. 187, 197, 16 Sup.Ct. 263, 40 L.Ed. 388; Selvester v. United States, 170 U.S. 262, 267, 18 Sup.Ct. 580, 42 L.Ed. 1029; Hardesty v. United States, 168 F. 25, 26, 93 C.C.A. 417.

Counsel for defendant urges that the count above quoted is bad, because it does not allege facts showing how or in what way the act of the defendant would obstruct the recruiting and enlistment service of the United States, and does not give the names of the particular persons who were affected by the conduct of the defendant. The offense charged is purely statutory, and the words of the statute contain all the ingredients of the offense. The count under consideration charges the offense in the language of the statute, and this is sufficient. Potter v. United States, 155 U.S. 438, 15 Sup.Ct. 144, 39 L.Ed. 214; United States v. Gooding, 12 Wheat. 460, 6 L.Ed. 693; United States v. Britton, 107 U.S. 655, 2 Sup.Ct. 512, 27 L.Ed. 520; Burton v. United States, 202 U.S. 344, 26 Sup.Ct. 688, 50 L.Ed. 1057, 6 Ann.Cas. 392.

'The means of effecting the criminal intent, or the circumstances evincive of the design with which the act was done, are considered to be matters of evidence to go to the jury to demonstrate the intent, and not necessary to be incorporated in an indictment. ' Wharton's Criminal Law, Sec. 292; Evans v. United States, 153 U.S. 584, 14 Sup.Ct. 934, 38 L.Ed. 830; May v. United States, 199 F. 42, 117 C.C.A. 420.

We think the count in question clearly apprised the defendant of what he must be prepared to meet, and showed with accuracy to what extent he might plead a former acquittal or conviction. Cochran v. United States, 157 U.S. 286, 15 Sup.Ct. 628, 39 L.Ed. 704.

The question of the sufficiency of the evidence to sustain a verdict of guilty on the count under consideration was not raised in the trial court during the trial, but we are asked to consider it, although not so raised. It is within the sound discretion of this court to notice the claim of counsel that there was no evidence to sustain the verdict of guilty, although this question was not raised in the trial court. Wiborg v. United States, 163 U.S. 632, 16 Sup.Ct. 1127, 41 L.Ed. 289; Clyatt v. United States, 197 U.S. 207, 28 Sup.Ct. 429, 49 L.Ed. 726; Crawford v. United States, 212 U.S. 183, 29 Sup.Ct. 260, 53 L.Ed. 465; Weems v. United States, 217 U.S. 349, 30 Sup.Ct. 544, 54 L.Ed. 793; Sykes v. United States, 204 F. 909, 123 C.C.A. 205; Moore v. United States, 224 F. 95, 139 C.C.A. 651.

We have decided to exercise our discretion in this case. The undisputed evidence showed that the defendant circulated the statement set forth in the indictment and several hundred others of similar import to German Lutheran and other churches of various denominations, professors in German colleges and other Universities, and individuals. Some of the cities to which the statements were sent were Boston, New York, Milwaukee, Denver, and San Francisco. A statement sent to Beth-Eden Church, Denver, Colo., closed with the words:

'We are forced to the endless chain to get the truth before the people. Will you help Truth, Free Speech, and Peace by writing and circulating one or many copies of this? Secret League of Patriots for Free Speech or Blood.'

A statement sent to Benjamin Largent, Denver, Colo., opened with the words:

'By the greatest campaign of lies the world has...