United States v. Werner

• Decision Date: 15 January 1918
• Docket Number: 89.
• Citation: United States v. Werner, 247 F. 708 (E.D. Pa. 1918)
• Parties: UNITED STATES v. WERNER et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

247 F. 708

UNITED STATES v. WERNER et al.

No. 89.

United States District Court, E.D. Pennsylvania.

January 15, 1918

Ernest Harvey, Asst. U.S. Atty., Francis Fisher Kane, U.S. Atty and Samuel Rosenbaum, Sp. Asst. U.S. Atty., all of Philadelphia, Pa.

Wm. A Gray, of Philadelphia, Pa., for defendants.

DICKINSON District Judge.

The substantial question raised by the demurrer is whether the treason indictment charges a crime in the sense of an offense against the law. This is in turn determined by an inquiry into what constitutes treason. Except to the extent to which the ample store of learning on the subject of treason enables us to better understand 'treason' as defined in the Constitution of the United States, this learning does not concern us. The statutory definition follows, as it must, the constitutional definition. We may therefore confine our attention to the latter. It is found in article 3, Sec. 3 and 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. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.'

In addition to obviously necessary elements, treason, as thus defined, embraces the existence both of a state of mind and the commission of overt acts, and prescribes how the latter shall be proven. The latter requirement demands a trial ruling and is not a demurrer question or in any proper sense a question of pleadings. Treason, as we are now concerned with it, assumes, as the proper attitude of all who are subject to this law, that of being well disposed toward the United States and of being its well wisher, and brands as traitor one who adheres to its enemies and who also levies war upon the United States, or who, in adhering to its enemies, gives those enemies aid and comfort. It is conceivable that a defendant may have this condemned attitude of mind or be what is termed 'traitor at heart,' and yet not expose himself to the charge of legal treason because he has committed no traitorous act. It is also conceivable that one under the domination of folly or of factional feeling or directed by a perverted view of what he is doing, or even a wrong-headed conscience, may do what would otherwise be traitorous acts, and yet not expose himself to that charge because the acts, although carrying all the consequences of traitorous acts, were done without traitorous purpose or intent. Such a man plays the part of a traitor, but is not a traitor at heart.

This indictment, in appropriate words, avers the presence of both these elements in what the defendants are charged with doing. It avers their attitude to be the opposite of that of those who are well disposed toward the United States, and charges the defendants with adhering to a nation against which this nation is waging a just war, giving this enemy nation aid and comfort, not, it is true, by the bold act of levying actual war upon the United States, but by other overt acts equally criminal and just as traitorous. Words may be acts, and acts words. Emphasis is given to the expression of the latter thought in the oft-quoted phrase that 'acts sometimes speak louder than words. ' Words, on the one hand, may be 'mere sound and fury signifying nothing,' or, on the other hand, they may be fraught with the most frightful significance, and be acts followed by the most dreadful consequences.

The question which has been sought to be raised by this demurrer is one which can only be raised, or at least is more properly raised, as a trial question. Counsel for defendants reads this indictment in such way as to give plausibility to the argument that the question the defendants seek to raise may be raised as a demurrer question. The reading is that the overt act charged is the publication of a newspaper. Even if the indictment be read as charging as the overt act the publication of a newspaper containing certain utterances, it...