Lockhart v. United States

• Decision Date: 12 March 1920
• Docket Number: 3306.
• Citation: 264 F. 14
• Parties: LOCKHART v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

264 F. 14

LOCKHART v. UNITED STATES.

No. 3306.

United States Court of Appeals, Sixth Circuit.

March 12, 1920

C. S Littleton, of Chattanooga, Tenn., for plaintiff in error.

W. T Kennerly, U.S. Atty., of Knoxville, Tenn.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DENISON Circuit Judge.

On February 7, 1919, Lockhart was indicted for violation of the Espionage Act (Act June 15, 1917, tit. 1, Sec. 3, 40 Stat 219, as amended May 16, 1918 (Comp. St. 1918, Comp. St. Ann Supp. 1919, Sec. 10212c)). The first count alleged that 'on or about May 26, 1918, and on divers other days between June 15, 1917, and October 15, 1918,' he made and conveyed certain 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. In the second count he is charged with speaking and publishing, at the times aforesaid, certain disloyal, scurrilous, and abusive language of the military and naval forces and with the intent to bring the same into contempt, scorn, contumely, and disrepute. The third count charges that, at the times aforesaid, he did, by his words and acts, support and favor the cause of the German government, and oppose the cause of the United States, in that he spoke and uttered the statements particularly specified in the first count, 'which is here referred to and by reference made a part of this third count,' and that he further said that the United States had no right to jump on Germany in the war; that the German people were the best people on earth and that he was for Germany in said war, tooth and nail. It is evident that the first count charged an offense created by the Espionage Act as originally passed June 15, 1917, and that the second and third counts were intended to and did charge only offenses first created by the amendment of May 16, 1918, and depended, respectively, upon what may be called clauses 5 and 10 of the amended act. The record seems not to contain the verdict, but counsel agree that defendant was acquitted on the first count and convicted on the second and third. He was sentenced to the penitentiary for a year and a day.

He first complains that there was an abuse of discretion in denying his motion for a continuance. On February 17th he filed an affidavit showing that his son was a material witness, had enlisted in the army, had gone abroad in October, 1917, and was still abroad. The motion was denied, and the case went to trial on February 19th. There was no showing of an effort to get the son's testimony by deposition, or that the deposition or his testimony could be had before the next term. If we assume that the absence of this showing may be excused by the existing war situation, it would follow that the prosecution must be almost indefinitely suspended; but, aside from all other considerations, we could not think the overruling of such a motion prejudicial error, unless there was a strong probability that the absence of the witness had substantially affected the result of the trial. From the verdict of acquittal on the first count, it follows that defendant was convicted only for what he said after May 16, 1918; hence his son could, at the best, have been an important witness for him only with reference to those occurrences before October, 1917, which had no direct bearing on his guilt under the second and third counts, but bore only on the question of intent. In this situation it is clear that there was no abuse of discretion.

Counsel strenuously urge that there is no evidence to support the conviction under the second and third counts. This conclusion is based on the contention that a careful analysis and study of the testimony show that whatever there was seeming to support these counts really has reference to a date prior to May 16, 1918, and therefore to a time when the alleged statements were not forbidden by the law. No motion was made for an instructed verdict, either at the conclusion of the government's evidence or at the conclusion of the case and no exception whatever was taken to the charge, which carefully instructed that the defendant should not be convicted under either of these counts, unless he had made the statements alleged after the law was amended, and with the intent specified in the respective clauses of the amended act. The defendant, therefore, has no right to be heard in this court upon the contention that there was no evidence. His counsel, with the proof fresh in their minds, acquiesced in the implied ruling that the questions were for the jury. The point was first raised on motion for new trial, and that was too late. Moore v. U.S., 150 U.S. 57, 61, 14 Sup.Ct. 26, 37...