Fontana v. United States

• Decision Date: 08 December 1919
• Docket Number: 5295.
• Citation: 262 F. 283
• Parties: FONTANA v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

262 F. 283

FONTANA v. UNITED STATES.

No. 5295.

United States Court of Appeals, Eighth Circuit.

December 8, 1919

John Knauf, of Jamestown, N.D. (B. W. Shaw, of Mandan, N.D., on the brief), for plaintiff in error.

M. A Hildreth, U.S. Atty., of Fargo, N.D. (John Carmody, Asst U.S. Atty., of Fargo, N.D., on the brief), for the United States.

Before SANBORN, CARLAND, and STONE, Circuit Judges.

SANBORN Circuit Judge.

The defendant below was convicted of three violations of section 3 of the Espionage Act of June 15, 1917 (40 Stat.p. 217, c 30 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 10212c)), and sentenced to three years in the penitentiary under an indictment containing three counts which charged that by saying the same words on or about December 19, 1917, he

(1) Willfully made and conveyed false reports with the intent to interfere with the operation and success of the military and naval forces of the United States and to promote the success of its enemies, to the injury of the United States;

(2) Willfully caused and attempted to cause insubordination, disloyalty, and refusal of duty in the military and naval forces of the United States, to its injury; and

(3) Willfully obstructed the recruiting and enlistment service of the United States, to the injury thereof.

The defendant demurred to the indictment, and the demurrer was overruled. At the close of the evidence he moved for a directed verdict, on the ground that there was no substantial evidence to sustain a verdict against him, and this motion was denied, and he made a motion in arrest of judgment, and that motion was denied. These rulings are assigned as error.

Counsel for the defendant insist that the indictment was insufficient, because it did not set forth the facts which the pleader claimed constituted the violations charged so distinctly as to advise him of the charges he had to meet and to give him a fair opportunity to prepare his defense, nor so particularly as to enable him to avail himself of a conviction or acquittal in defense of another prosecution for the same offense.

The indictment charged that the three offenses were committed on or about December 19, 1917, at New Salem, a town in North Dakota, during the war between the United States and the Imperial German government, with the respective intents denounced by the statute, by falsely stating:

(1) That President Wilson was a man who, after securing his election on the slogan 'kept us out of war,' turned squarely around and by the use of his high office of President whipped the members of Congress into line by threats of exposure of this one and that one, and in this way secured the authority to enter the war with Germany;

(2) That he felt proud of the noble fight the Germans were making in the war;

(3) That the sinking of the Lusitania was justified, and that there was no reason whatever for the United States taking up arms against Germany;

(4) That he frequently prayed for the success of the armies of Germany over the armies of the United States;

(5) And stated to his congregation and to divers persons, whose true names are to the grand jurors unknown, false and injudicious statements as aforesaid;

(6) That he did not want to subscribe for Liberty Loan Bonds, because it would tend to encourage the administration; (7) That the President was using the same methods of threats to force every bank within the United States to subscribe to Liberty Loan Bonds;

(8) That the purchase of Liberty Loan Bonds would give the country more money to fight Germany and thus prolong the war;

(9) That he desired the success of the enemies of the United States.

The averment in the indictment that the defendant made these statements on or about December 19, 1917, was a mere formal jurisdictional allegation, which permitted the introduction of evidence of any of them at any time before the indictment was filed within the statute of limitations, and there was nothing but that formal statement and the allegation that the statements were made at New Salem to indicate at what time, under what circumstances, on what occasions, to whom, in whose presence, or by what persons the government would attempt to prove that the defendant had made any of these statements, nothing to indicate to him whether he was to be tried for making all of them at one time, on one occasion, or for making some of them at one time to one person, and others at other times and on other occasions to other persons.

The basic principle of English and American jurisprudence is that no man shall be deprived of life, liberty, or property without due process of law; and notice of the charge or claim against him, not only sufficient to inform him that there is a charge or claim, but so distinct and specific as clearly to advise him what he has to meet, and to give him a fair and reasonable opportunity to prepare his defense, is an indispensable element of that process. When one is indicted for a serious offense, the presumption is that he is innocent thereof, and consequently that he is ignorant of the facts on which the pleader founds his charges, and it is a fundamental rule that the sufficiency of an indictment must be tested on the presumption that the defendant is innocent of it and has no knowledge of the facts charged against him in the pleading. Miller v. United States, 133 F. 337, 341, 66 C.C.A. 399, 403; Naftzger v. United States, 200 F. 494, 502, 118 C.C.A. 598, 604.

It is essential to the sufficiency of an indictment that it set forth the facts which the pleader claims constitute the alleged transgression, so distinctly as to advise the accused of the charge which he has to meet, and to give him a fair opportunity to prepare his defense, so particularly as to enable him to avail himself of a conviction or acquittal in defense of another prosecution for the same offense, and so clearly that the court may be able to determine whether or not the facts there stated are sufficient to support a conviction. United States v. Britton, 107 U.S. 665, 669, 670, 2 Sup.Ct. 512, 27 L.Ed. 520; United States v. Hess, 124 U.S. 483, 488, 8 Sup.Ct. 571, 31 L.Ed. 516; Miller v. United States, 133 F. 337, 341, 66 C.C.A. 399, 403; Armour Pkg. Co. v. United States, 153 F. 1, 16, 17; 82 C.C.A. 135, 150, 151, 14 L.R.A. (N.S.) 400; Etheredge v. United States, 186 F. 434, 108 C.C.A. 356; Winters v. United States, 201 F. 845, 848, 120 C.C.A. 175, 178; Horn v. United States, 182 F. 721, 722, 105 C.C.A. 163, 167. If the pleader had set forth in this indictment any fact or facts, such as the time, place, occasion, circumstances, persons present, or any other distinctive earmark whereby the defendant could have found out or identified the occasion or occasions when the government intended to attempt to prove that the defendant uttered any of the nine sayings charged he might have been able to investigate the basis of the charges, to learn who were or were not present on the occasions referred to, hence who were possible witnesses, and to prepare his defense; but there is nothing of that kind in the indictment. As it reads, he might have been called to meet on each of the nine charges testimony that at any time of day or night, at any place in New Salem, on any occasion, public or private, before the indictment was filed, and after the Espionage Act was passed on June 15, 1917, he had uttered to any one whomsoever any of the statements charged in the indictment. These considerations compel the conclusion that this pleading signally failed to state the facts which the government claimed constituted the alleged offense in this case, so distinctly as to give the defendant a fair opportunity to prepare his defense to meet any of them, and that he could not and did not have that notice of them required to give him a fair trial.

Nor were the charges in this indictment so certain and specific that upon conviction or acquittal thereon it or the judgment upon it constitute a complete offense to a second prosecution of the defendant for the same offense. In determining this question the evidence on the trial may not be, and the indictment and the judgment alone can be, considered, because the evidence does not become a part of the judgment, and as the indictment states no facts from which the time, places, or occasions on which the respective statements therein were alleged to have been made can be identified, the indictment and judgment failed to identify the charges so that another prosecution therefor would be barred thereby. Florence v. United States, 186 F. 961, 962, 964, 108 C.C.A. 577, 578, 580, and cases there cited; Winters v. United States, 201 F. 845, 848, 120 C.C.A. 175, 178.

Moreover there is no such clear statement in the indictment of the facts which the government claims constituted the offenses charged as enables a court fairly and justly to determine that they would sustain a conviction. If the statements charged, when considered in the light of the times and circumstances under which they were uttered, were reasonably calculated to effect the results averred, the indictment was sufficient to require the court to send the case to the jury. If, on the other hand, upon its face, in the light of the times and circumstances it disclosed, the facts pleaded in the indictment were not reasonably susceptible to the inference that the statements were made by the defendant with the intent to interfere with the operation and success of the military and naval forces of the United States, and to promote the success of its enemies to the injury of the United States, or to cause or attempt to cause insubordination, disloyalty, and refusal of duty in the military and naval forces of the United States to its injury, or to obstruct the recruiting and...