Jacobsen v. United States

• Decision Date: 16 December 1920
• Docket Number: 2633-2636.
• Citation: 272 F. 399
• Parties: JACOBSEN v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

272 F. 399

JACOBSEN v. UNITED STATES.

Nos. 2633-2636.

United States Court of Appeals, Seventh Circuit.

December 16, 1920

Rehearing Denied April 5, 1921.

Henry W. Freeman and Wm. S. Forrest, both of Chicago, Ill., for plaintiffs in error.

Joseph B. Fleming, of Chicago, Ill., for the United States.

Before BAKER, ALSCHULER, and PAGE, Circuit Judges.

PAGE Circuit Judge.

In an indictment returned in the Eastern Division of the Northern District of Illinois on June 2, 1917 (No. 6094) defendants Jacobsen, Wehde, Boehm, Gupta, and others were charged with violation of section 13 of the Criminal Code of the United States, which reads as follows:

'Whoever within the territory or jurisdiction of the United States begins, or sets on foot, or provides or prepares the means for, any military expedition or enterprise, to be carried on from thence against the territory or dominions of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace, shall be fined not more than three thousand dollars and imprisoned not more than three years. ' Comp. St. 1916, Sec. 10177.

By an indictment returned at the same time (No. 6082) they were charged with a conspiracy under section 37 of the Criminal Code of the United States, which reads as follows:

'If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than ten thousand dollars, or imprisoned not more than two years, or both. ' Comp. St. Sec. 10201.

Over the objection of the four defendants tried, the two indictments were consolidated, and after a trial the jury, on October 20, 1917, found all the four above-named defendants guilty on each of the two charges in the consolidated indictment. Upon those verdicts the District Court imposed separate penalties under each charge against each defendant, the sentences under the two charges to run concurrently, and this proceeding is under four separate writs of error seeking a review of the sentences against the defendants, who are plaintiffs in error here.

The charge for violation of section 13 is that the several defendants--

'did unlawfully and feloniously begin, set on foot, and provide and prepare the means for, a certain military enterprise, to be carried on from thence against the territory and dominions of a certain foreign prince, to wit, the king of the United Kingdom of Great Britain and Ireland and of the British dominions beyond the seas, and emperor of India, with whom the United States, throughout said period of time, were at peace; that is to say, an enterprise having for its objects the inciting of armed rebellion in India, of the native subjects of said prince against his government and authority there, and the furnishing of military training to said subjects, and of arms, munitions, supplies and money, for carrying on and supporting such rebellion, and an enterprise which was to carried on from Chicago aforesaid by said defendants devising the plan of the same there, enlisting and assembling men of military training there, sending such men from Chicago to India, going themselves from Chicago to India, and procuring and furnishing money at Chicago for defraying the expenses of such men and of themselves in traveling from Chicago to India, to engage in such rebellion, and for purchasing such arms, munitions and supplies for carrying on and supporting such rebellion.'

The charge for violation of section 37 is that the parties named conspired to commit a like offense.

In 1915 Germany and Great Britain were at war, and the United States was at peace with both of them. At various places in this country and elsewhere representatives of the then Imperial German government, notably, Von Papen, military attache in New York, and Baron Von Reiswitz, vice consul in Chicago, induced Indian-born subjects of Great Britain, German citizens, and former German citizens residing in Illinois and elsewhere to join in a scheme to start a revolution in India against the authority of the British government in India. There were numerous meetings of all the defendants tried and others at the house of defendant Jacobsen in Chicago. Early in 1915 plans more or less perfect were made and agreed to by all of them to raise men, money, and equipment in Chicago and elsewhere, and to train men and take them, as an armed hostile military force, into India for the purpose stated. The plans were formulated in Chicago and the undertaking was to be, and was, as far as it went, carried on from Chicago and elsewhere in the United States.

In furtherance of the conspiracy, Gupta went from Chicago, with money obtained from Von Papen in New York and from Jacobsen in Chicago, to Japan to buy arms and ammunition to be taken into India. Jacobsen also agreed to and did care for the family of Boehm, while Boehm went to India by way of Manila and Siam to get together and train troops for the proposed Indian rebellion. Sterneck (Scholtz), a defendant not tried, went with Boehm. Both Sterneck and Boehm had had military training and experience. Others left Chicago pursuant to the plans made in Chicago.

Wehde got money from Von Reiswitz in Chicago and started from Chicago for India via Siam and Manila. At Manila, with several of the other defendants, he chartered a boat and got arms and ammunition for the expedition from an interned German vessel. Subsequently Wehde got more money by cable from Von Reiswitz in Chicago.

Many other things were done, by each defendant convicted, pursuant to the conspiracy, and the activities continued until their plans were discovered and they were arrested. The foregoing is a mere sketch of the conspiracy and of the activities of the defendants and others in carrying it out, as shown by the evidence.

1. There was no error in the consolidation of the indictments. U.S. Compiled Statutes, Sec. 1690; Kelly v. United States, 258 F. 392, 402, 169 C.C.A. 408; Emanuel v. United States, 196 F. 317, 116 C.C.A. 137.

2. It is urged that each count of the consolidated indictment is insufficient. The language of each count is substantially that of the statute, and properly charges a statutory offense. The meaning is clear. No injury growing out of any alleged insufficiency or uncertainty in the allegations appears from the record, and none is disclosed in the argument. Under authority of Jelke v. United States, 255 F. 264, 274, 166 C.C.A. 434, and cases there cited, the allegations are sufficient.

3. It is next urged that the indictment under section 13 is bad, because four distinct and separate offenses are charged in its one count. This is clearly a misconception of the statute. The thing at which the statute is directed is the prevention of military or naval expeditions or enterprises against governments with whom the United States is at peace. The several things mentioned in section 13 of the statute are merely different ways of accomplishing the general object. This is clearly set out and discussed in Crain v. United States, 162 U.S. 625, 636, 16 Sup.Ct. 952, 40 L.Ed. 1097, cited and relied upon by counsel for defendants here.

4. There is much discussion of the question as to what constitutes a military expedition or military...