United States v. Hartzel, 8253

• Decision Date: 10 January 1944
• Docket Number: 8264.,No. 8253,8253
• Citation: 138 F.2d 169
• Parties: UNITED STATES v. HARTZEL. SAME v. SOLLER.
• Court: U.S. Court of Appeals — Seventh Circuit

138 F.2d 169 (1943)

UNITED STATES v. HARTZEL.

SAME v. SOLLER.

Nos. 8253, 8264.

Circuit Court of Appeals, Seventh Circuit.

October 14, 1943.

Rehearing Denied November 10, 1943.

Writ of Certiorari Granted January 10, 1944.

Benedict J. Short, Ode L. Rankin, and Wm. J. Powers, all of Chicago, Ill., for appellants.

J. Albert Woll and Wm. J. Connor, U. S. Atty., both of Chicago, Ill., for appellee.

Before SPARKS, MAJOR, and KERNER, Circuit Judges.

Writ of Certiorari Granted January 10, 1944. See 64 S.Ct. 437.

MAJOR, Circuit Judge.

Appellants Hartzel and Soller, together with one Mecartney, were tried by a jury and found guilty of violating Secs. 3 and 4 of the Espionage Act, 50, U.S.C.A. §§ 33, 34. The indictment contained seven counts, the first six of which charged the substantive offense of sedition, while count 7 charged a conspiracy to commit such substantive offense. A motion for new trial was allowed as to Mecartney and the cause dismissed as to him. Judgment was rendered against Hartzel and Soller, who have perfected separate appeals. They may both be appropriately disposed of in one opinion.

The substantive counts are predicated upon three pamphlets, entitled "The British: An Inferior Breed"; "The Jew Makes A Sacrifice: Forthcoming Collapse of America"; and "The Diseased Spinal Cord." In all of such counts, it is charged that the defendants prepared, published and distributed such pamphlets throughout the United States, while the United States was at war. Counts 1, 3 and 5 alleged that by such action the defendants wilfully and knowingly obstructed the recruiting and enlistment service of the United States, and counts 2, 4 and 6 that the defendants wilfully and knowingly did cause and attempt to cause insubordination, disloyalty, mutiny and refusal of duty in the military and naval forces of the United States, and that the defendants well knew that said pamphlets would produce the result complained of.

It perhaps would serve no good purpose to set forth all these pamphlets in their entirety, and certainly it would unduly lengthen this opinion. The one entitled "The British: An Inferior Breed" is in question and answer form, as follows:

"Are they degenerate?

"Plainly. Never again shall they be permitted to try to bring the slinking death of starvation to Europe, squealing hysterically as they do so about `freedom'.

"What is the present position of our `protectors', proclaimed saviors of Poland?

"Now on the lease-lend dole, they are a kept woman.

"Are they a cultured people?

"Standing as an outpost to the continent of Europe, they are a parasite on its art, science and civilization.

"In what way are they kept flying?

"The Germans keep 'em flying wherever they find them. They run at the mouth as well as the bowels.

"Will the British Isles be policed?

"It will be unnecessary. When the people upon whom they are fastened withdraw their support, they will collapse.

"What is the new blasphemy?

"Making Christianity a slimy thing for those who crawl and creep by an island breed which—possessed of an empire obtained by aggression—points the finger of guilt at others. They are now fighting for Christ with bloody Joe.

"Who betrayed America to the empire of the British-Jewish yellow race?

"Rosenfeldt. We are victims of his Infantilism; he cannot stand alone.

"Are Jews rushing forward to war after urging you to crush 'em?

"No. But when America is exhausted they, as in Russia, will slither forth to sink their fangs into its body.

"Are Americans united?

"Yes. Externally with the corpus of a degenerate empire: internally with the sick body of `our leader.'

"What is behind the doctrine of `no appeasement'?

"The fear of aggression on the bloated domains of an empire which cannot stand alone;

"The inhuman cruelty of America's first blood soaked boom;

"The rumble of world revolution—a repercussion of its indecencies;

"The effort of the Jew—vicious persecutor of peoples—to save himself;

"The disease of a Paralytic who wants to be a hero as compensation for his ailment;

"The beginning of insanity as the masses of the so-called `democracies' are led toward the destruction of Europe, homeland of the West.

"Why was Pearl Harbor evidence of justice?

"While trying to save a yellow race in the Atlantic we were hit a deadly blow by a yellow race in the Pacific. Like a cow hit on the head by a hammer when led to slaughter, we now follow `our leader' as he moves forward on a sick spine to war."

The pamphlet entitled "The Jew Makes A Sacrifice: The Forthcoming Collapse of America" is in part as follows:

"Our blood soaked boom of the first World War was followed by a speculative orgy, then collapse. A similar maladjustment now seeks an outlet in another blood soaked boom which will end as before. In all of this the Jew—oriental hyphenated American, propagandist for bloody Joe and the British (Jewish) empire—has been an eager participant. Indeed, like a snake forced from its nest, the slimy blood lust of the `holy people' now stands revealed— for is it not evident that the Jew hates bloodshed only when his own skin is in danger? * * * Today, in fact, almost any crime may be committed in his name in connection with fine words such as `freedom'. How else justify blood soaked booms; attempts to starve Europe by blockade; an alliance with bloody Joe; and the massing of enormous quantities of men and materials with which to `crush' the Germans —except by offsetting the degeneracy of such acts by declaring them to be dictated by the `spirit'.

"The oriental Japanese struck at Port Arthur, in 1904, and at Pearl Harbor while negotiating. The Jew does not have their manfulness for open warfare, but he will —while conserving his own blood— eventually strike those with whom he lives in the back. He is now infiltrating into Government jobs under cover of `no race prejudice'. He is, in fact, `dying' for the coming of bolshevism by making ready for your collapse. After many of the young men of America are killed—when the sick, the exhausted, the cunning remain—then he will, as in Russia, crawl from his nest. * * *"

The pamphlet entitled "The Diseased Spinal Cord" is in part as follows:

"Wilson died an invalid; Roosevelt became president one. What is the social significance of his condition?

"A clue is given in the statement that syphilis is `the result of an illness of moral, social and racial instincts' of which prostitution is an integral part. Similarly the breakdown of Wilson after the `peace' was probably connected with reactions from the emotional debauchery of preceding years. It is, therefore, suggested that the epidemic of paralysis in New York State at a later time had a source in the weakening of nervous systems, brought about by the emotional self-masturbation of stories of the `bad' Germans.

"Our leader—safe in Washington—escaped the actual horrors of war, but he could not escape the virus of a child's disease. As with syphilis his paralysis is indicative of severe maladjustments within the nation. He reproduces within his body our internal breakdown; he is in fact a degenerate who now seeks ways of having us cure him of his ailment. * * *

"Hidden within the present program to save humanity are germs of infantilism, paralysis and death. For we now follow, not a little child, but a man with a child's disease. * * * "Crush my enemies screams Jewry; be bold; take the offensive; we'll back you up. We're fighting for freedom says our leader, with his sick body coiled around the brain as with a snake prepared to strike. We're fighting to save Poland say the British hysterically; we hate other peoples aggression.

"America was betrayed. The butchery, misery and death they would take to Germany must now, if necessary, be returned upon ourselves by:

"A stench from rotting carcasses of those who would again invade Europe;

"Starvation for millions of British who thought they could starve others;

"Dissolution from an internal war of race against race;

"Occupation by foreign troops until we are able to stand alone; and at last

"The appointment of a bedside cabinet to investigate the condition of (Rosenfeld) our leader."

That defendant Hartzel was the author of these pamphlets, and sent several hundred of them through the United States mail, is not disputed. There were also introduced as bearing upon the question of intent and purpose numerous other articles and pamphlets of the same general tenor, prepared and circulated by him prior to the entry of the United States into the present war.

Both Hartzel and Soller urgently insist that the proof failed to present a jury question and that the court erred in its refusal to direct a verdict in their favor. In deciding this question, we need not consider the proof as it pertains to each count of the indictment for the reason that the judgment could have been imposed upon any of the substantive counts. If the proof is sufficient to sustain any count, an affirmance is required. Abrams v. United States, 250 U.S. 616, 619, 40 S. Ct. 17, 63 L.Ed. 1173. It follows, therefore, that we need not...