United States v. Salberg

• Citation: 287 F. 208
• Decision Date: 13 February 1923
• Docket Number: 7348.
• Parties: UNITED STATES v. SALBERG.
• Court: U.S. District Court — Northern District of Ohio

287 F. 208

UNITED STATES v. SALBERG.

No. 7348.

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

February 13, 1923

Gerard J. Pilliod, Asst. U.S. Atty., of Toledo, Ohio.

H. C Pontius, of Canton, Ohio, for defendant.

WESTENHAVER District Judge.

Defendant demurs generally to the indictment, and in support thereof urges that the crime alleged appears by the face of the indictment to be barred by the statute of limitations. The indictment charges that the defendant, being a person required by the Act of May 18, 1917, commonly known as the Selective Service Act (Comp. St. 1918, Comp. St. Ann. Supp 1919, Secs. 2044a-2044k), to register on June 5, 1917, as required by the President's proclamation, failed and refused, unlawfully and feloniously, so to do. He is not charged with failing or refusing to register at any other or later registration date.

Selective Service Act, Sec. 5 (section 2044e), makes it an offense for any person, thus required to register, to willfully fail or refuse to present himself for registration or to submit thereto as required by the act. The offense is declared to be a misdemeanor, punishable by imprisonment for not more than one year. No limitation upon a prosecution is provided by that act. The applicable statute of limitations is therefore section 1708, U.S. Comp. Stat., as amended by Act Nov. 17 1921, c. 124, 42 Stat. 220. This section provides that:

'No person shall be prosecuted, tried, or punished for any offense * * * unless the indictment is found * * * within three years next after such offense shall have been committed.'

The amendment of November 17, 1921, inserts a proviso extending the period of limitations to six years with respect to offenses involving the defrauding or attempting to defraud the United States or any agency thereof. The original and amended section further provides that it shall apply to offenses where the existing statute of limitations has not fully run, but not to offenses which are already barred by the provisions of existing laws. Such being the nature of the offense charged, and such being the applicable provisions of the statute of limitations, it must be held that the indictment is not good. The offense thereby charged, as alleged to have been committed under the law and the presidential proclamation, could only have been committed on or about the 5th of June, 1917. The offense charged, as well as the offense committed, is not a continuing offense. The indictment was not found until December 20, 1922. Prosecution of the offense charged was barred not later than June, 1920.

The government, to avoid this conclusion, invokes the provisions of a joint resolution of Congress approved March 8, 1922 (42 Stat. 421). It is quoted in full in the margin. ^[1] This is a declaratory and not an enacting resolution. It does not create any new offenses nor modify any existing laws. It may be entitled to respect as an expression of legislative opinion, but one must look to acts, joint resolutions, and proclamations comprehended within its descriptive language in order to determine what the effect thereof may be

Section 2 of the Act of May 18, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 2044b), referred to therein, relates to the manner of raising and maintaining of troops in view of the existing emergency declared by section 1 (section 2044a), namely, the war between the Imperial German Government and the United States, declared by joint resolution April 6, 1917 (40 Stat. 1). Section 2 creates no crimes in and of itself. It provides that all persons who shall enlist or be drafted into the military service of the United States shall be subject to all regulations governing the Regular Army, so far as applicable. This no doubt makes such persons subject to the Articles of War and triable therefor before military tribunals. It further provides that all persons thus enlisted or drafted, whose permanent retention in the military service on the active or retired list is not contemplated by existing law, shall be required to serve for the period of the existing emergency, unless sooner discharged. It does not, however, provide for the discharge of such persons automatically at the termination of the war or upon proclamation of peace.

Section 4 of title 1 of the Act of June 15, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 10212d), referred to therein, is a part of what is commonly called the Espionage Act. This section makes it an offense for two or more persons to conspire to violate sections 2 and 3 of title 1 of the Espionage Act (sections 10212b, 10212c), and provides a distinctive punishment for such conspiracies, leaving the general provisions of section 37, Criminal Code of the United States (Comp. St. Sec. 10201), to apply to all conspiracies to violate other provisions of the Espionage law. All the other acts or joint resolutions of Congress or presidential proclamations, referred to in general language, are difficult of identification. One no doubt is the presidential proclamation dated November 21, 1921, declaring that the war between the Imperial German Government and the United States had terminated July 2, 1921. Another, no doubt, is the joint resolution approved July 2, 1921 (chapter 40, 42 Stat. 105). This joint resolution declares that the state of war between the United States and the Imperial German Government is at an end. Section 6 provides in part that nothing therein contained shall be--

'effective to terminate the military status of any person now in desertion from the military or naval service of the United States, nor to terminate the liability to prosecution and punishment under the Selective Service Law, approved May 18, 1917, of any person who failed to comply with the provisions of said Act, or of Acts amendatory thereof.'

Another joint resolution referred to, no doubt, is that approved March 3, 1921 (chapter 136, 41 Stat. 1359). The provisions of this resolution are too long to quote or even to summarize. In brief, it attempts to declare that provisions relating to the duration or date of termination of the present war, or of the present or existing emergency as contained in all war legislation, shall be construed and treated to be the same as the date of the adoption of this joint resolution. It also contains the same reservation above quoted from the resolution of July 2, 1921. It also reserves from repeal certain other war-time legislation. It expressly repeals the Act of June 15, 1917, known as the Espionage Act, and the act amendatory thereof, approved May 16, 1918, but also expressly revives and restores section 3 of said act with the same force and effect as when originally enacted. It contains this further provision:

'Nothing herein contained shall be held to exempt from prosecution or to relieve from punishment any offense heretofore committed in violation of any act hereby repealed or which may be committed while it remains in force as herein provided.'

If any other pertinent acts or joint resolutions of Congress or proclamations of the President exist, I have not been able to find them, nor has my attention been called thereto by counsel. I shall assume that there are none.

If I am correct in my understanding of the joint resolutions above referred to, then section 4 of the Act of June 15, 1917, is repealed and is no longer in force. Certainly nothing contained in that repealed section can have the effect apprehended by Congress in adopting the joint resolution approved March 8, 1922. The provisions, however, above quoted from the joint resolution of March 3, 1921, repealing the Espionage Act, except as to section 3, provide that this repeal shall not exempt any offender from prosecution or relieve him from punishment for any offense previously committed. If this reservation had not been made, the repeal of that law might have prevented the beginning of new prosecutions and brought to an end all pending prosecutions.

Section 2, however, of the Act of May 18, 1917, is still in force; but it contains nothing which looks one way or the other in the direction apparently apprehended by Congress. Nothing in any of these acts or joint resolutions purports to deal with the existing statutes of limitation applicable to prosecutions for offenses against any law of the United States, whether created by the Selective Service Act or the Espionage Act, nor to prosecutions before military tribunals for offenses committed by persons in the military service. All offenses against the United States, including the offense charged in this indictment, are left to be governed by the statute of limitations provided in section 1708, U.S. Comp. Stat., above noted. The offense of desertion from the military or naval service of the United States is left to be dealt with by the Articles of War and the statutes applicable to the offense of desertion.

The joint resolution approved March 8, 1922, relied on by the...