United States v. Sugarman

• Decision Date: 25 October 1917
• Parties: UNITED STATES v. SUGARMAN.
• Court: U.S. District Court — District of Minnesota

245 F. 604

UNITED STATES v. SUGARMAN.

United States District Court, D. Minnesota, Second Division.

October 25, 1917

Alfred Jaques, U.S. Atty., of Duluth, Minn., and William Anderson Asst. U.S. Atty., of Minneapolis, Minn.

Louis L. Schwartz and T. E. Latimer, both of Minneapolis, Minn and Seymour Stedman, of Chicago, Ill., for defendant.

BOOTH District Judge.

The motion is a rather broad one, and the argument has naturally taken a somewhat broad scope. The motion, I take it, in its present form, practically covers the same ground as the demurrer that was interposed to the indictment, and the motion to quash the indictment, and also the more limited motion to direct a verdict for lack of evidence to go to the jury.

It is insisted by counsel for the defendant, not only that the indictment does not state facts sufficient in law to constitute an offense, but also that under the evidence as disclosed on the part of the government a good indictment cannot be drawn under section 3 of the Espionage Law to cover the facts disclosed. These questions as to whether the indictment states facts in sufficient form, and whether the facts stated are sufficient in law, are somewhat intimately connected, and have been argued more or less together, so that they may be properly treated more or less together.

The indictment is drawn under section 3 of the so-called Espionage Law (Act June 15, 1917), and, so far as this case is concerned, that section reads as follows:

'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, * * * shall be punished.'

Now, the indictment drawn under that section is substantially as follows: That on the 24th of July, 1917, the United States being then and there at war, Abraham L. Sugarman, in the county of Sibley, state and district of Minnesota, and within the jurisdiction of this court, did willfully attempt to cause insubordination, disloyalty, mutiny, and refusal of duty in the military forces of the United States, by then and there urging, counseling, and advising a number of young men (named) not to report when ordered so to do by the military authorities of the United States for military service; they, the said young men, being the persons who had theretofore registered for service in the military forces of the United States in accordance with the act of Congress of May 18, 1917, and the rules and regulations promulgated by the President. Now, the ordinary tests for sufficiency of an indictment as to form are that it shall be sufficiently definite to acquaint the defendant with what charge he has to meet upon the trial; and also sufficiently definite and certain so that, if he either is convicted or acquitted, he may thereafter plead the judgment in any other prosecution that may be brought against him for the same offense; and, third, that the court may be acquainted with what is charged, so that it may determine whether or not the facts, if they are proven, constitute an offense in law within the statute under which the indictment is drawn.

Now, it seems to me, applying those tests to this indictment, that as to the formal requisites it is sufficient. It acquaints the defendant with the time and place of the offense; it acquaints him with the fact that it is claimed that then and there he attempted to cause insubordination, disloyalty, mutiny, and refusal of duty in the military forces of the United States; and it acquaints him with how it is claimed that was done, by urging certain young men there not to report for military duty, and that these young men were men who had been registered under the act of Congress. It is true the indictment does not set forth what was said by the defendant in the way of urging, counseling, and advising this disloyalty and refusal of duty; but it seems to me that, in the present instance, that would be requiring the indictment to set out evidence, and the indictment, as I understand it, is not required to set out evidence. It is required to set out ultimate facts, and it seems to me that within the tests this indictment does set out ultimate facts. Now, whether the indictment sets out facts which, if true, are sufficient in law to constitute an offense, and whether the evidence that has been introduced here is sufficient to be submitted to a jury to determine whether the offense has been committed, are further questions that are raised by this motion.

It is claimed that there is no allegation in the indictment of any intent on the part of the defendant, and it is true that there is no specific allegation of intent on the part of the defendant. It is alleged that he did 'feloniously and willfully attempt to cause insubordination, disloyalty,' etc. Now, if the indictment had been for causing, and had alleged that he did certain acts, and then had alleged that he did those acts with intent to produce a certain effect and that the effect was produced, that would have constituted one offense under this act. But this is the offense of attempting, which in its very nature assumes that the attempt was not consummated into the completion of...