Schaefer v. United States Vogel v. Same Werner v. Same Darkow v. Same Lemke v. Same
| Decision Date | 01 March 1920 |
| Docket Number | Nos. 270-274,s. 270-274 |
| Citation | 40 S.Ct. 259,251 U.S. 466,64 L.Ed. 360 |
| Parties | SCHAEFER v. UNITED STATES. VOGEL v. SAME. WERNER v. SAME. DARKOW v. SAME. LEMKE v. SAME |
| Court | U.S. Supreme Court |
Messrs. Wm. A. Gray and Henry John Nelson, both of Philadelphia, Pa., for plaintiffs in error.
Mr. Assistant Attorney General Stewart, for the United States.
Indictment in nine counts under the Espionage Act. Preliminary to indicating the special offenses we may say that the indictment charges that at the dates mentioned therein the Philadelphia Tageblatt and the Philadelphia Sonntagsblatt were newspapers printed and published in the German language in Philadelphia by the Philadelphia Tageblatt Association, a Pennsylvania corporation of which defendants were officers; Peter Schaefer being president, Vogel treasurer, Werner chief editor, Darkow managing editor, and Lemke business manager.
That on the dates mentioned in the indictment the United States was at war with the Imperial German government and the defendants 'knowingly, willfully, and unlawfully' 'caused to be printed, published and circulated in and through' one or other of those newspapers false reports and statements of certain news items or dispatches purporting to be from foreign places, or otherwise violated the Espionage Act through editorials or other published matter.
In count 1 the charge is that the intent was 'to promote the success of the enemies of the United States, to wit, the said Imperial German government.'
In counts 2, 3, and 4 the charge is the obstruction of the 'recruiting and enlistment service of the United States, to the injury of the United States.'
In count 5 the purpose of publication is charged to be the making of false reports and statements with intent to promote the success of the enemies of the United States.
In counts 6, 7, and 8 there are charges of intent to like purpose.
Count 9 charges a conspiracy entered into by defendants to be executed through the agency of the two newspapers for the purpose: (a) To make false reports and statements with intent to interfere with the military and naval operations and success of the United States and to promote the success of its enemies; (b) to cause insubordination, disloyalty, and mutiny in the military and naval forces of the United States; (c) to obstruct the recruiting and enlistment service of the United States. And there were specifications in support of the charges.
Demurrers were opposed to the indictment which stated in detail the insufficiency of the indictment to constitute offenses. The demurrers were overruled; the court considering that the grounds of attack upon the indictment could be raised at the trial.
The defendants were then arraigned and pleaded not guilty and when called for trial moved for a severance urging as the reason that the courts had ruled that defendants when tried jointly must join in 'their challenge to jurors.' Counsel in effect said they contested the ruling and considered the statute upon which it was based to be 'in derogation of the individual's rights, guaranteed to him by the Constitution.'
Other grounds for severance were urged, but the court denied the motion, and to the ruling each of the defendants excepted. In fortification of the motion for severance, at the selection of the jury, counsel, in succession for each defendant, challenged particular jurors peremptorily, expressing at the same time the acceptance by the other defendants of the challenged jurors. After 10 such challenges had been made counsel interposed a peremptory challenge to other jurors in behalf of all of the defendants, stating as reasons that they 'collectively' were not 'bound by what their codefendants may have done with respect to any particular juror, and that, therefore, they are still within their rights.' The court denied the challenge, ruling that under the provisions of the act of Congress 'all the defendants will be deemed a single party and 10 challenges having been exercised in the aggregate, the right of challenge is exhausted.'
Defendants excepted and the tra l proceeded resulting in a verdict as follows: Schaefer and Vogel guilty on count 9 only; Werner on counts 1, 2, 4, and 9; Darkow on 1, 3, 5, 6, and 9; Lemke on count 9 only.
Motions for arrest of judgment and for a new trial were made and overruled, and defendants were sentenced to various terms of imprisonment.
The case is here upon writ of error directly to the District Court as involving constitutional questions.
It is conceded that the constitutionality of the Espionage Act has been sustained (Sugarman v. United States, 249 U. S. 182, 39 Sup. Ct. 191, 63 L. Ed. 550), but the constitutionality of the Act of March 3, 1911, c. 231, § 287 (Comp. St. § 1264), by which several defendants may be treated as one party for the purpose of peremptory challenges, is attacked. Its constitutionality is established by Stilson v. United States, 250 U. S. 583, 40 Sup. Ct. 28, 63 L. Ed. 1154, decided November 10, 1919.
The other assignments of error are: (1) The government failed to prove the charge of making false statements as the same was made in the indictment and that therefore the court erred in refusing to instruct the jury to acquit upon the counts charging the offense. (2) 'In passing upon the question of falsity of the dispatches as published by appellants and in passing upon any other questions which are a matter of public knowledge and general information' the court erred in instructing the jury that 'they had a right to call upon the fund of knowledge which was in their keeping.' (3) The court erred in refusing to instruct the jury to render a verdict of not guilty upon all of the counts in case of each of the defendants.
Assignments 1 and 3 may be considered together. They both depend upon an appreciation of the evidence although assignment 1 is more particular as to the offense charged. But neither can be discussed without a review of the evidence and a detailed estimation of its strength, direct and inferential. That, however, is impossible, as the evidence occupies over 300 pages of the record and counsel have not given us an analysis or compendium of it, but have thrust upon us a transcript of the stenographer's notes of the trial, which counsel for the government aptly says 'presents' of the case 'a picture of a certain sort, but it is a picture which is constantly out of focus, being either larger than the reality or smaller.' However, we have accepted the labor it imposed, and have considered the parts of the evidence in their proper proportions and relation, and brought them to an intelligible focus, and are of opinion that the court rightfully refused the requested instructions, except as to the defendants Schaefer and Vogel. As to them we do not think that there was substantial evidence to sustain the conviction. They were acquitted, we have seen, of all the individual and active offenses, and found guilty only on the ninth count—the charge of conspiracy.
The second assignment of error is somewhat confusedly expressed. It, however, presents an exception to the charge of the court as to what the jurors were entitled to consider as matters of public knowledge and general information. Counsel apparently urge against the charge that it submitted all the accusations of the indictment to the proof of the public knowledge and general information that the jurors possessed. The charge is not open to the contention, and as discussion is precluded except through a consideration of the instructions in their entirety, we answer the contention by a simple declaration of dissent from it based, however, we may say, on a consideration of the instructions as a whole not in fragments detached and isolated from their explanations and qualifications. Counsel at the trial attempted to assign to the charge the generality they now assert and it was rejected.
It is difficult to reach or consider the particulars of counsel's contention, the foundation of which seems to be that the indictment charged the falsification of the 'dispatches,' and that, therefore, the gv ernment must prove the falsification of them. What counsel mean by 'falsification,' is not easy to represent, they conceding there was proof that 'the articles which were published differ from the articles in the papers from which they were copied,' but contending that no evidence was offered of what was contained in the original dispatches of which the publications purported to be copies. And again counsel say:
'The falsity, as it has been called, which was proven against the defendants was that the articles which were published differ from the articles in the papers from which they were copied.'
The charge and proof, therefore, were of alterations—giving the 'dispatches' by a change or characterization a meaning that they did not originally bear—a meaning that weakened the spirit of recruiting and destroyed or lessened that zeal and animation necessary or helpful to raise and operate our armies in the then pending war. And there could be no more powerful or effective instruments of evil than two German newspapers organized and conducted as these papers were organized and conducted.
Such being the situation, and the defendants having testified in their own behalf, and having opportunity of explanation of the changes they made of the articles which they copied, the court instructed the jury as follows:
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