Foster v. United States

• Decision Date: 28 October 1918
• Docket Number: 3157.
• Citation: 253 F. 481
• Parties: FOSTER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

253 F. 481

FOSTER et al. v. UNITED STATES.

No. 3157.

United States Court of Appeals, Ninth Circuit.

October 28, 1918

The plaintiffs in error were civilian employes for a contractor who was doing work at the Camp Lewis cantonment. They were indictment in six counts, three of which charged offenses committed on November 10, 1917, and the others charged offenses committed on November 13, 1917. The first count charges that on November 10, 1917, at Camp Lewis, Wash., when the United States was at war with Germany, the accused 'did willfully, knowingly, unlawfully, and feloniously make and convey false reports and false statements with 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, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. ' The second count charged, in the language of the statute, that the accused 'did willfully, knowingly, unlawfully, and feloniously cause and attempt to cause insubordination disloyalty, mutiny, and refusal of duty in the military forces of the United States, to the injury of the service of the United States'; and the third count charged that they 'did unlawfully, willfully, knowingly, and feloniously obstruct the recruiting and enlistment service of the United States, to the injury of the service of the United States.' The fourth, fifth, and sixth counts were framed as were the first, second, and third.

A demurrer was interposed to the indictment, and to each count thereof, on the ground that no offense or crime was charged therein against the laws of the United States. The demurrer was overruled, but the court directed that a bill of particulars be furnished. The order was complied with, and a bill of particulars was furnished stating that the seven defendants were singled out as leaders spreading propaganda against the United States, that they were searched, and I.W.W. cards and papers were taken from their persons; that they carried on I.W.W. activities working toward the spreading of dissatisfaction among the soldiers and laborers whom they got to listen to their arguments. Then followed the specification of statements made by the defendant Hodges on November 10th to a named person, and statements made by the defendants Foster and Hodges on November 13th in the sleeping quarters occupied by the defendants at Camp Lewis. There was no mention made in the bill of particulars of the activities of the other defendants, except that it was alleged that one of them, who was not named, made certain disloyal and hostile statements as to the government, and another passed around I.W.W. literature. No exception was taken to the bill of particulars as insufficient, and the cause went to trial without further objection. But objection was made to the introduction of evidence against the defendants not named in the bill of particulars, to the overruling of which an exception was allowed.

By the verdict of the jury all of the plaintiffs in error were found guilty as charged in the first count; Phelan and Hodges were found guilty as charged in the second, third, fifth, and sixth counts; and Phelan, Hodges, and Foster were found guilty as charged in the fourth count.

H. E. Foster, of Seattle, Wash., for plaintiffs in error.

Clarence L. Reames, Sp. Asst. Atty. Gen., and Robert C. Saunders, U.S. Atty., of Seattle, Wash., for the United States.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District judge.

GILBERT Circuit Judge (after stating the facts as above).

We are of the opinion that the indictment is fatally defective and that the demurrer should have been sustained. The plaintiffs in error had the constitutional right to be informed of the nature and cause of the accusation against them. To furnish them with that information it was necessary to set forth in the indictment the particular facts and circumstances which rendered them guilty and to make specific that which the statute states in general. A statutory offense may be so defined that the indictment will sufficiently charge the violation there-of if it follows the language of the statute but this is so only in cases where the statute apprises the offender from the mere adoption of the statutory terms of the precise nature of the offense for which he is to be tried. Here the statute is very general in its terms, and the indictment merely charges in the language of the statute. Thus in the first count it goes no further than to allege that the accused did willfully, knowingly, unlawfully, and feloniously make and convey false reports and false statements, with 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. It...