Shaffer v. United States
| Decision Date | 10 February 1919 |
| Docket Number | 3220. |
| Citation | 255 F. 886 |
| Parties | SHAFFER v. UNITED STATES. [1] |
| Court | U.S. Court of Appeals — Ninth Circuit |
The plaintiff in error was convicted under a count of an indictment which alleged in substance the following: That on March 7, 1918, when the United States was at war with the Imperial German Government, the defendant did willfully knowingly, unlawfully, and feloniously use and attempt to use the mails and postal service of the United States for the transmission of matter declared to be nonmailable by the act of Congress approved June 15, 1917 (40 Stat. 230, c. 30, tit 12 (Comp. St. 1918, Secs. 10401a-10401d)), in this: That he did then and there willfully, knowingly, unlawfully, and feloniously deposit and cause to be deposited in the post office of the United States at Everett, Wash., an envelope bearing the address of 'H. H. Bettinger, Granite Falls Washington,' and containing a book and publication containing matter advocating and urging treason and forcible resistance to the act of Congress approved May 18, 1917 (40 Stat. 76, c. 15 (Comp. St. Secs. 2044a-2044k)), and urging and attempting willfully to cause insubordination disloyalty, mutiny, and refusal of duty in the military and naval forces of the United States, and urging and attempting willfully to obstruct recruiting and enlistment in the service of the United States, to the injury of said service and of the United States, which said book was entitled 'The Finished Mystery,' pages 247 to 253 whereof are particularly filed with treasonable, disloyal, and seditious utterances, among other things setting forth the following:
William R. Bell, of Seattle, Wash., for plaintiff in error.
Robert C. Saunders, U.S. Atty., Clarence L. Reames, Sp. Asst. Atty. Gen., and Hinman D. Folsom, Jr., Attorney for Department of Justice, all of Seattle, Wash., for the United States.
Before GILBERT, ROSS, and MORROW, Circuit Judges.
GILBERT Circuit Judge (after stating the facts as above).
Error is assigned to the refusal of the court to instruct the jury to return a verdict in favor of the defendant. That assignment presents two questions: First, does the book constitute nonmailable matter, within the definition of the act of Congress approved June 15, 1917? and, second, was there absence of evidence to show that the plaintiff in error used or attempted to use the mails of the United States for the transmission of the book?
The plaintiff in error contends that the publication complained of contains no false statement, but only the opinion of the author of the book that patriotism is identical with murder and the spirit of the devil, that war is a crime, and the argument that it was yet to be proved whether Germany had any intention or desire of attacking the United States. It is true that disapproval of war and the advocacy of peace are not crimes under the Espionage Act; but the question here is not whether the publication contained expressions only of opinion, and not statements of fact, but it is whether the natural and probable tendency and effect of the words quoted therefrom are such as are calculated to produce the result condemned by the statute.
The act of June 15, 1917, declares to be nonmailable every letter book, etc., 'of any kind in violation of any of...
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