Goldstein v. United States

• Decision Date: 26 May 1919
• Docket Number: 3289.
• Parties: GOLDSTEIN v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

258 F. 908

GOLDSTEIN v. UNITED STATES. ^[1]

No. 3289.

United States Court of Appeals, Ninth Circuit.

May 26, 1919

Crittenden Thornton, of San Francisco, Cal., for plaintiff in error.

Robert O'Connor, U.S. Atty., and W. F. Palmer, Sp. Asst. U.S Atty., both of Los Angeles, Cal.

The plaintiff in error was convicted on two counts of an indictment, the first of which charged as follows: 'That throughout the period of time from the 6th day of April, in the year of our Lord one thousand nine hundred and seventeen to the day of the finding and presentation of this indictment, the United States has been at war with the Imperial German government, and that during said period of time one Robert Goldstein, whose full and true name other than as herein stated is to the grand jurors unknown hereinafter called defendant, in the city of Los Angeles, state of California, and within the Southern Division of the Southern District of California and within the jurisdiction of this honorable court, did, on the 28th day of November, in the year of our Lord one thousand nine hundred and seventeen, knowingly, willfully and unlawfully attempt to cause insubordination, disloyalty, mutiny, and refusal of duty, in the military and naval forces of the United States in the manner following, that is to say:

'That at the time and place aforesaid, the said Robert Goldstein did present to the public at Clune's Auditorium Theater, a certain motion picture play, entitled and known as 'The Spirit of '76,' which said motion picture play was designed and intended to arouse antagonism, hatred, and enmity between the American people, and particularly the American military and naval forces, against the people of Great Britain, and particularly against the military and naval forces of Great Britain at a time when, as the defendant then and there well knew, the government of Great Britain with its military and naval forces was an ally of the United States in the prosecution of the war as aforesaid against the Imperial German government; that among the scenes so presented in said motion picture play, 'The Spirit of '76,' there was, at the time and place aforesaid, presented to the public in said picture the scene of a soldier of Great Britain whirling an American infant around on the point of his bayonet, and the scene of British soldiers in the act of shooting and bayoneting helpless and defenseless American women and children and dragging American women and children by their hair and capturing and carrying away young American girls, and many other scenes of like character, all of which were designed and intended and were being used for the purpose of causing insubordination, disloyalty, mutiny, and refusal of duty in the military and naval forces of the United States.'

There was a demurrer to each count of the indictment for its failure to state an offense against the laws of the United States, and a motion to quash which specifically pointed out the absence of allegation showing the proximity of military or naval forces of the United States, or that they could be affected thereby. The demurrer and the motion were overruled.

Before GILBERT, MORROW, and HUNT, Circuit Judges.

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

The demurrer and the motion to quash raised the question whether or not either count of the indictment alleged an offense against the United States.

We will first consider the count which charges an attempt to cause insubordination and disloyalty or refusal of duty. The statute, Act of June 15, 1917, is clear and simple in its language. Whoever, when the United States is at war, shall willfully cause, or attempt to cause,...