Snitkin v. United States

• Decision Date: 30 March 1920
• Docket Number: 2670.
• Citation: 265 F. 489
• Parties: SNITKIN v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

265 F. 489

SNITKIN v. UNITED STATES.

No. 2670.

United States Court of Appeals, Seventh Circuit.

March 30, 1920

Plaintiff in error was tried, convicted, and sentenced to imprisonment for five years, on an indictment in two counts for conspiracy.

In the first count, omitting introductory matter and overt acts, the offense was stated as follows:

'That on or about the fifteenth day of September, in the year of our Lord one thousand nine hundred and seventeen, and thereafter up to and including the fifth day of October, in the year of our Lord one thousand nine hundred and seventeen, A. Joseph Schur, Maurice L. Snitkin, and Leonard A. Snitkin, in the state of New York and in the district of Indiana, acting together in each of said states, did unlawfully, willfully and feloniously, conspire, combine confederate, and agree together to commit an offense against the United States of America, to wit, to willfully obstruct the recruiting, enlistment and military service of the United States of America, to the injury of said service and the United States of America, by then and there fraudulently obtaining for the said . . . Swartz, whose true Christian name is unknown to these grand jurors exemption from military service of the United States, the said . . . Swartz being then and there between the ages of 21 and 30 years, both inclusive, and registered for and eligible to military service as aforesaid, and the said United States being then and there in a state of war with the Imperial government of Germany; said exemption to be fraudulently obtained by the said A. Joseph Schur, acting as the aforesaid government appeal agent, in the manner as follows, to wit: That said . . . Swartz would falsely pretend that he was residing either temporarily or permanently in the jurisdiction of said local board in Marion county, Indiana, and be transferred to said board for examination, and said Schur, as such agent, would also so represent and pretend the same was true to said board and * * * thereby falsely impose upon said board and its jurisdiction and authority, by having said . . . Swartz fictitiously assume residence in the jurisdiction of said board for the purpose of having said board examine into the military status, fitness and liability of said . . . Swartz for military service under said act, rules, and regulations; that said defendant, Leonard A. Snitkin, would pay said Schur a large sum of money, to wit, $1,000, and otherwise favor him, and said Schur would accept same, as a corrupt bribe of said Schur to do said things as such agent and also that said Schur would make to said board for and on behalf of said . . . Swartz, false, fraudulent and fictitious claims, statements, representations, certificates, affidavits, and other information, and would also conceal from said board material and proper facts and information, and would fail, neglect, and refuse to perform the duty required of him as such agent by said act, rules, and regulations, all for the unlawful, corrupt, and fraudulent purpose of obtaining exemption of said . . . Swartz from military service under said act of Congress, and all for the purpose as aforesaid, without regard as to whether said . . . Swartz was justly or legally entitled to said exemption.'

The second count is word for word the same as the first, except that the pleader stated the view that the recited doings of the parties constituted a conspiracy to violate title; section 3 of the Espionage Act. Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 10212c.

Section 6 of the Selective Draft Act is as follows:

'The President is hereby authorized to utilize the service of any or all departments and any or all officers or agents of the United States and of the several states, territories, and the District of Columbia, and subdivisions thereof, in the execution of this act, and all officers and agents of the United States and of the several states, territories and subdivisions thereof, and of the District of Columbia, and all persons designated or appointed under regulations, prescribed by the President whether such appointments are made by the President himself or by the Governor or other officer of any state or territory to perform any duty in the execution of this act, are hereby required to perform such duty as the President shall order or direct, and all such officers and agents and persons so designated or appointed shall hereby have full authority for all acts done by them in the execution of this act by the direction of the President. Correspondence in the execution of this act may be carried in penalty envelopes bearing the frank of the War Department. Any person charged as herein provided with the duty of carrying into effect any of the provisions of this act or the regulations made or directions given thereunder who shall fail or neglect to perform such duty; and any person charged with such duty or having and exercising any authority under said act, regulations, or directions, who shall knowingly make or be a party to the making of any false or incorrect registration, physical examination, exemption, enlistment, enrollment, or muster; and any person who shall make or be a party to the making of any false statement or certificate as to the fitness or liability of himself or any other person for service under the provisions of this act, or regulations made by the President thereunder, or otherwise evades or aids another to evade the requirements of this act or of said regulations, or who, in any manner, shall fail or neglect fully to perform any duty required of him in the execution of this act, shall, if not subject to military law, be guilty of a misdemeanor, and upon conviction in the district court of the United States having jurisdiction thereof, be punished by imprisonment for not more than one year, or, if subject to military law, shall be tried by court-martial and suffer such punishment as a court-martial may direct. ' Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 2044f.

Section 37 of the Penal Code reads thus:

'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.

Section 3 of the Espionage Act provides:

'Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies and whoever, when the United States is at war, shall willfully cause, or attempt to cause insubordination, disloyalty, mutiny or refusal of duty in the military or naval forces of the United States, or shall willfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years or both.' 40 Stat. 219.

Section 4 of the Espionage Act:

'If two or more persons conspire to violate the provisions of sections 2 or 3 of this title, and one or more of such persons does any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be punished as in said sections provided in the case of the doing of the act the accomplishment of which is the object of such conspiracy. Except as above provided conspiracies to commit offenses under this title shall be punished as provided by section 37 of the act to codify, revise, and amend the penal laws of the United States approved March fourth, nineteen hundred and nine. ' Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 10212d.

Edward F. Dunne, of Chicago, Ill., and Elijah N. Zoline, of New York City, for plaintiff in error.

M. L. Ert Slack, of Indianapolis, Ind., for the United States.

Before BAKER, MACK, and EVANS, Circuit Judges.

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

Evidence for the government consisted largely of the testimony of Schur, a codefendant. Plaintiff in error took the witness stand and denied the case sought to be made by the government's proofs. He fortified his defense by character witnesses. He requested the court to charge the jury:

'You have heard evidence of the standing and reputation of this defendant, Leonard Snitkin, for good character. That reputation alone may create a reasonable doubt of this defendant's guilt in your minds, and is proper for you to consider.' In connection with this request counsel called the court's attention to Edgington v. United States, 164 U.S. 361, 17 Sup.Ct. 72, 41 L.Ed. 467. Instead, the court charged:

'If such defendant has in the community where he lives, by his incomings and outgoings among his neighbors, built up a good reputation among them for the qualities about which this testimony has been given, you should give that fact such weight as you think it is entitled to, taking into consideration all the other facts and circumstances established by the evidence.'

Thus the court placed the evidence respecting good reputation on the same basis as the evidence relating to the substantive acts charged in the indictment, and directed the jury to give it such weight as they might think it entitled to, without furnishing them the legal scales in which to weigh it namely, that a reputation for good character, if established, alone may create a reasonable doubt, although without it the other evidence would be convincing of guilt. In view of the contest between Schur and plaintiff...