United States v. De Bolt

• Decision Date: 03 July 1918
• Docket Number: 1105.
• Citation: United States v. De Bolt, 253 F. 78 (S.D. Ohio 1918)
• Parties: UNITED STATES v. DE BOLT et al.
• Court: U.S. District Court — Southern District of Ohio

253 F. 78

UNITED STATES v. DE BOLT et al.

No. 1105.

United States District Court, S.D. Ohio, Eastern Division.

July 3, 1918

Stuart R. Bolin, U.S. Atty., and F. F. Smith, Asst. U.S. Atty., both of Columbus, Ohio.

N. J Weisend, of Columbus, Ohio, and J. M. Lewis, of Urbana, Ohio for defendants.

SATERDistrict Judge.

The evidence having all been submitted, each of the defendants moves for a directed verdict on the grounds (1) that the indictment does not state a cause of action, and (2) that, if the indictment is good, the evidence does not warrant a conviction.It is the duty of a court, in considering such a motion, to take that view of the evidence most favorable to the party against whom it is desired that the verdict should be directed, and, from that evidence and the inferences reasonably and justifiably to be drawn therefrom, determine whether or not under the law a verdict might be found for that party(Nelson v. Ohio Cultivator Co.,188 F 620, 629, 630, 112 C.C.A. 394(C.C.A. 6);Herman H Hettler Lumber Co. v. Olds,221 F. 612, 615, 137 C.C.A. 336(C.C.A. 6)); or, to use the language of Judge Sanborn in the criminal case of Isbell v. United States,227 F. 788, 790, 142 C.C.A. 312(C.C.A. 8):

'At the close of the evidence in every trial by jury, the question of law, not whether the weight of the evidence sustains the claims of the plaintiff or the defendant, but whether or not there is any substantial evidence to sustain the claim of the plaintiff, necessarily and unavoidably arises, and the duty rests upon the trial court to direct a verdict for the defendant if there is no such evidence.'The Ralston Steel Car Company, located at Columbus, Ohio, has for some time past been engaged on its premises in manufacturing for the United States, for war purposes, about 4,400 steel cars.About 400 of them are to be used in trench warfare in France; the residue are to be employed on steam railways to aid in the prosecution of the present war with Germany.In early June an attempt was made to unionize the company's plant.Some 10 or 12 employes who had joined the union were discharged.Whether their discharge was due to their union proclivities or to other cause or causes is not material to the decision of the questions presented.One Ingraham, who worked at a nine-foot spindle lathe, which was used on the company's premises in the production of the heretofore mentioned war utilities, refused all solicitations to connect himself with the union and continued to work at his machine.On the evening of June 11th a meeting of the members of the union was held, which was attended by a number of those who had identified themselves with it, and also by one Fox, who had applied for admission to the union and had arranged to pay his dues on the day following.It was understood that Fox should remain in the company's employ for the purpose of furnishing information as to the new men that might be brought in to take the places of the discharged employes, as to the work that was being done, and as to where and by whom the dies for the company were made.

On account of the alleged occurrences at and following the meeting at which some, if not all, of the discharged workmen were present, an indictment was preferred against De Bolt and Kelso, which recites that on that date they unlawfully, maliciously, feloniously, and willfully, with reason to believe that their act might injure, interfere with, and obstruct the United States in preparing for and carrying on the war with Germany and its allies, attempted to cause to be made in a defective manner the steel railroad cars then in process of manufacture by the Ralston Company, by advising and attempting to influence Fox to procure a small bottle of vinegar and to pour its contents into the bearings of the lathe on which Ingraham was working, and also to loosen the tail stocks and screws of such machine, and to do such other things to such lathe as would spoil the material in it on which Ingraham was working.The indictment does not state what effect the vinegar would have on the bearings.There is evidence, however, that tends to show that the discharge of Ingraham was desired; that vinegar applied to the bearings of the lathe would thin and cut the lubricating oil, would cause the bearings to become hot, and would necessitate the removal of the shaft and delay in completion of the work in hand; and that, although loosening of the tail stock would ordinarily be detected by a workman, such loosening would permit the material in the lathe to drop from its place and cause the work done to be defective and untrue.

The indictment is based on section 3 of what is commonly known as the Sabotage Law, approved April 20, 1918, and entitled 'An act to punish the willful injury or destruction of war material, or of war premises or utilities used in connection with war material, and for other purposes,' which section is as follows: 'That when the United States is at war, whoever, with intent to injure, interfere with, or obstruct the United States or any associate nation in preparing for or carrying on the war or whoever, with reason to believe that his act may injure, interfere with, or obstruct the United States or any associate nation in preparing for or carrying on the war, shall willfully make or cause to be made in a defective manner, or attempt to make or cause to be made in a defective manner, any war material, as herein defined, or any tool, implement, machine, utensil, or receptacle used or employed in making, producing, manufacturing, or repairing any such war material, as herein defined, shall, upon conviction thereof be fined not more than $10,000 or imprisoned not more than thirty years or both.'

The government has offered substantial evidence, which the defendants have vigorously combated, to prove the charge laid in the indictment.Fox, if he ever assented to the pouring of vinegar in the bearings of Ingraham's lathe or to loosening its tail stock or screws (all of which is for the jury's determination), recanted, and, being suspected by his employer and kept under surveillance, disclosed, according to his evidence, when called to the office of his employer, the entire scheme which the government claims was concocted on the evening of June 11th.The defendants' position is that, to convict of an attempt to commit a crime, it is necessary to show that an overt act was done with the specific intent to commit that particular crime, and that merely to advise, solicit, or attempt to influence another to commit a crime is not an overt act, but that some additional step constituting such an overt act is necessary to constitute an offense.They therefore claim that the indictment is insufficient in law, and that, if the evidence offered by the government be accepted as true, no offense was committed, for the reason that the defendants did nothing more than to advise, solicit, and attempt to influence Fox to pour vinegar into the bearings of the lathe and to loosen its tail stock and screws.

The gravity of the situation produced by the present war is such that Congress in its wisdom was impelled to enact the wise but somewhat drastic, law on which the indictment is based.It denounces as a felon (seesection 335, Penal Code(ActMarch 4, 1909, c. 321, 35 Stat. 1152 (Comp. St. 1916, Sec. 10509)) not only the person who, with reason to believe that his act may injure, interfere with, or obstruct the United States in preparing for or carrying on the war, willfully makes or causes to be made in a defective manner any war material, such as the Ralston Steel Car Company was making, but also the person who under like conditions attempts to make or who attempts to cause to be made in a defective manner any such material.The language employed is comprehensive and unrestricted.It does not define the nature of the attempt which it condemns, but expressly makes the attempt itself a separate substantive crime, and covers any attempt to cause to be made in a defective manner war material coming within its terms.Another...