Stephan v. United States

• Decision Date: 05 April 1943
• Docket Number: No. 9337.,9337.
• Parties: STEPHAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

133 F.2d 87 (1943)

STEPHAN v. UNITED STATES.

No. 9337.

Circuit Court of Appeals, Sixth Circuit.

February 6, 1943.

As Amended February 19, 1943.

Writ of Certiorari Denied April 5, 1943.

COPYRIGHT MATERIAL OMITTED

Nicholas Salowich, of Detroit, Mich., and James E. McCabe, of Nashville, Tenn., for appellant.

John W. Babcock, of Detroit, Mich. (John C. Lehr and John W. Babcock, both of Detroit, Mich., on the brief), for appellee.

Before HICKS, ALLEN, HAMILTON, MARTIN, and McALLISTER, Circuit Judges.

Writ of Certiorari Denied April 5, 1943. See 63 S.Ct. 858, 87 L.Ed. ___.

HICKS, Circuit Judge.

Appellant was convicted of treason and sentenced to death by hanging. There are twenty-five assignments of error, some of which raise questions not presented to the court below and others of which are not discussed in the brief, nor called to our attention in the oral argument. However, the case involves a penalty of death for appellant, and we shall proceed upon the exception to the general rule and shall notice possible error, although the questions may not properly be raised. See Wiborg v. United States, 163 U.S. 632, 658, 16 S.Ct. 1127, 1197, 41 L.Ed. 289; Crawford v. United States, 212 U.S. 183, 194, 29 S.Ct. 260, 53 L.Ed. 465, 15 Ann.Cas. 392.

It is urged that the indictment does not charge the offense of treason with sufficient certainty, and particularly that the allegations of overt acts are not clear.

Treason is the most serious offense that may be committed against the United States, Hanauer v. Doane, 12 Wall. 342, 79 U.S. 342, 347, 20 L.Ed. 439; In re Charge to Grand Jury, 30 Fed.Cas. pages 1024, 1025, No. 18269; and its gravity is emphasized by the fact that it is the only crime defined by the Constitution. The constitutional definition Art. 3, Sec. 3, Cl. 1 is: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. * * *"

The phrase "in levying War against them" is not here involved. This definition is meticulously exclusive and that it was so intended is indicated by the use of the adverb "only." The Constitution has left no room for constructive treason and Congress could not and has not undertaken to restrict or enlarge the constitutional definition.

The statute upon which the indictment is based is as follows: "Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere is guilty of treason." (R.S. Sec. 5331; March 4, 1909, C. 321, Sec. 1, 35 Stat. 1088; U.S.C.A. Title 18, c. 1, Sec. 1.)

The statute follows the Constitution and designates the class of persons subject to its provisions, to wit, "whoever, owing allegiance to the United States, * * *."

Section 2 of the statute provides the punishment for treason.

The indictment charged — that appellant, a citizen of, and a person owing allegiance to, the United States, did at and within the City of Detroit, County of Wayne, State of Michigan, Eastern District of Michigan and the United States of America, continuously and at all times during the 18th and 19th days of April, A. D. 1942, unlawfully, feloniously, wilfully, traitorously and treasonably adhere to one Hans Peter Krug, a secret agent and spy for, and a secret representative of the Government of Germany in the furthering and carrying on of its war against the United States, and an officer in the Army of the Government of Germany who had escaped from a war prisoners' camp in Ontario, Canada; and that the adherence of appellant to Krug, and the giving of aid and comfort by appellant to Krug during April 18th and 19th, 1942, consisted: in his receiving and treating with Krug, in his furnishing hospitality and entertainment to Krug, in his furnishing to and obtaining for Krug money, necessities of life and personal effects, in his harboring Krug, in his concealing the identity of Krug, in his giving false information to citizens of the United States and others with the intent to conceal the identity of Krug, in his arranging for and providing transportation of Krug in and about Detroit, Michigan, and means of transportation for Krug from Detroit, Michigan, to Chicago, Illinois, and in his failure to report to proper public and military officials the presence in the United States of Krug; and that appellant, when so adhering to and giving aid and comfort to Krug, well knew all of the facts stated in the indictment.

The indictment is sufficient. United States v. Behrman, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619; Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 76 L.Ed. 861; Dierkes v. United States, 6 Cir., 274 F. 75. It distinctly and clearly alleges each and every element of the offense necessary to be charged, including time, place and circumstances, and advised appellant of the charge he was required to meet, to wit, that he had unlawfully, feloniously, traitorously, treasonably, knowingly and intentionally adhered to and given aid and comfort to Peter Krug, an enemy of the United States, and in furtherance thereof had committed certain overt and manifest acts. These alleged overt acts, twelve in number, were set out in the indictment with exact and careful detail.

Appellant insists that the court erred in denying his motion for a directed verdict. This involves the question, (1) whether the constitutional provision Art. 3, Sec. 3, Cl. 1 that "No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, * * *." italics ours has been met, see United States v. Robinson, D.C., 259 F. 685; Wharton's Crim.Law, 11th Ed., vol. 3, Sec. 2155; Wigmore on Ev., 3rd Ed., vol. 7, Sec. 2038; and if met (2) whether there was substantial evidence to support the verdict. There was no material conflict in the evidence. Appellant cross-examined witnesses for the Government but introduced no testimony on his own behalf.

The evidence discloses that appellant was admitted to citizenship in the United States on June 24, 1935, and took the oath of allegiance on June 28, 1935. The oath is as follows: "I hereby declare on oath that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, and particularly to Germany of whom (1) I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies foreign and domestic; that I will bear true faith and allegiance to the United States of America, and that I take this obligation freely without any mental reservation or purposes of evasion, so help me God."

The Government's principal witness was Hans Peter Krug. He testified that he was a citizen of the Government of Germany and an officer, an "Oberlieutnant," in the German Air Force; that on August 28, 1940, he was piloting a bombing plane over England, with which country Germany was then at war; that he was shot down and captured; that he was injured, was taken to a hospital and afterwards, in January 1941, was transferred to an internment camp for war prisoners near Nays, Ontario; that in November 1941, he was transferred to an officers' camp at Bowmanville, Ontario, from which he escaped on April 17, 1942. His escape was confirmed by the testimony of two Canadian officers stationed at the camp. With the aid of forged papers and the assistance of a priest, who was influenced by false stories, he reached Windsor, Ontario, and proceeded by means of a stolen boat, across the river to Detroit. About 9:00 or 9:30 on the next morning, April 18, dressed in coveralls, he made his way to 259 Phillip Ave., Detroit, the home of a Mrs. Bertelmann, whose name and address he had obtained from his fellow prisoners. At his urgent behest, she admitted Krug to her home and he identified himself by showing her the epaulets of a German officer.

Mrs. Bertelmann was born in Germany, was married there in 1920, and came to Canada in 1928. Her husband, also a German, became an American citizen in 1930 but she never applied for citizenship. She had done knitting for the German war prisoners in Canada and had, through appellant, purchased tobacco and other articles to send to them. She testified that it was required that the name and address of the sender should be attached to these packages.

Krug testified that when he told Mrs. Bertelmann that he was "Oberlieutnant Krug," escaped from Canada, she telephoned appellant, whom she styled as a friend of hers, and said, "that he was coming over." There is evidence that in this telephone conversation Mrs. Bertelmann told appellant that she had a German prisoner in her home. Mrs. Bertelmann testified that when she realized that Krug was a German prisoner, escaped from Canada, she was scared, because she knew that it was not right to have him in her house; that when she told appellant upon his arrival that she had a German prisoner, he chided her for her agitation and said, "what are you shaking for? — You're crazy." Krug testified that when appellant came into the kitchen where he was, appellant sat down, "held his hands on the upper part of his legs and smiled."

There was some question on Krug's part whether he told appellant the whole story of his escape then or later in appellant's restaurant, although it appears from both his and Mrs. Bertelmann's testimony that Krug spoke to them both at some length of his experiences after his escape from Bowmanville. Mrs. Bertelmann, who was passing back and forth through the kitchen during this conversation, testified that she heard appellant ask, "Why don't you give up, you haven't a chance?" and that Krug replied, "I have to try, because on account of treatments over there." On cross-examination Krug revealed that appellant told him that it would be impossible for him to go back to Germany by way of South America, and that he should go back where h...