A person may be convicted of a conspiracy to obstruct recruiting by words of persuasion. Schenck v. U. S. (1919), 249 U.. S. 47; O'Connell v. U. S. (1920), Sup. Ct., decided May 17, 1920.

It was not necessary to allege the means by which the conspiracy was to be carried out. A conspiracy to obstruct recruiting would be criminal even if no means were agreed upon specifically by which to accomplish the intent. It is not necessary to allege intent, for intent to accomplish an object can not be alleged more clearly than by stating that parties conspired to accomplish it. Frohwerk v. U. S. (1919), 249 U. S. 204.

Mental attitude is implied in the words "support," "favor." and " oppose." The offense being one whose definition necessarily includes intent, indictment therefor need not allege intent, but only the acts done. Schulze v. U. S. (C. C. A. 1919), 259 Fed. 189, affirming 253 Fed. 377.

Whether a defendant, through drunkenness, was capable, at the time of the utterance, of entertaining the specific intent required by the espionage act, is a question for the jury. Stenzel v. U. S. (C. C. A. 1919). 261 Fed. 161.

Question whether defendant had knowledge of an article printed and circulated in a paper of which he was the owner, editor, and manager held one for the jury. Bouldin v. U. S. (C. C. A. 1919), 261 Fed. 674 certiorari denied, 253 U. S. 490.

,,

Intent in making statements calculated to cause insubordination, disloyalty, etc., in military forces, a question for the jury. Anderson v. U. S. (C. C. A. 1920), 264 Fed. 75; certiorari denied, 253 U. S. 495. A statement that the "government was for the profiteers held to refer to the administration, and not to the sy m of polity or body of principles or rules by which the people are lawfully guided under the Constitution. Stokes v. U. S. (C. C. A. 1920), 264 Fed. 18.

Prior or other statements of accused.-In a prosecution for attempting to incite disloyalty and refusal of duty in the military service, evidence of statements made by defendant before the entrance of the United States into the war held admissible, as tending to show the state of mind and feeling of defendant. Howenstine v. U. S. (C. C. A. 1920), 263 Fed. 1.

In a prosecution for giving counsel and advice against enlistment, brought under this section, evidence of statements and conversations of defendant other than those charged in the indictment, while the United States was engaged in the World War, held admissible to show the intent with which the words charged were spoken,

when properly limited to such purpose. Boehner v. U. S. (C. C. A. 1920), 267 Fed. 562.

In a prosecution for uttering language intended to incite resistance to the United States, then at war, and supporting the cause of its enemies, in violation of the above section, evidence of statements by defendant after the beginning of the war but before the entry of the United States into the same, showing that he was then a strong supporter of Germany, held admissible, on the question of intent in using the language charged. Albers v. U. S. (C. C. A. 1920), 263 Fed. 27; Seebach v. U. S. (C. C. A. 1919), 262 Fed. 885; Shidler v. U. S. (C. C. A. 1919), 257 Fed. 620; Herman v. U. S. (C. C. A. 1919), 257 Fed. 601; certiorari denied, 251 U. S. 558; but see Kammann v. U. S. (C. C. A. 1919), 259 Fed. 192; Grubl v. U. S. (C. C. A. 1920), 264 Fed. 44.

And likewise of statement made before the passage of the espionage act. Deason v. U. S. (C. C. A. 1918), 254 Fed. 259; certiorari denied, 249 U. S. 607; Equi v. U. S. (C. C. A 1919), 261 Fed. 53; certiorari denied, 251 U. S. 560; but see Wolf v. U. S. (C. C. A. 1919), 259 Fed. 388.

And likewise on a prosecution for conspiracy to induce violation of the selective service act, of statements and publications prior to the passage of said act. Haywood v. U. S. (C. C. A. 1920), 268 Fed. 795.

In a trial under this section for publishing and distributing seditious literature, admission of other publications distributed by defendants held not error, as limited to the question of intent. Partan v. U. S. (C. C. A. 1919), 261 Fed. 515; certiorari denied, 251 U. S. 561; American Soc. Society v. U. S. (C. C. A. 1920), 266 Fed. 212; certiorari denied, 254 U. S. ———.

Held prejudicial error to admit evidence of threats made by the defendant against the President, unconnected with the acts with which he was charged. Hall v. U. S. (C. C. A. 1919), 256 Fed. 748.

In cases where there are eye or ear witnesses to the happening of an isolated transaction, and the sole question 1s whether it happened or did not happen, it is not proper or competent to permit the introduction of evidence of remote and disconnected matters, not charged in some good count in the indictment, to prove intent, where the element of intent is not involved in the crime charged. Holzmacher v. U. S. (C. C. A. 1920), 266 Fed. 979.

False newspaper publications.-An indietment against newspaper publishers, under the espionage act (40 Stat. 219), for making false reports with intent to obstruct

the military or naval forces, by altering original news dispatches before publication, is sustained by evidence showing that the dispatches were "lifted" from other publications and then altered so as to give aid to the enemy. United States v. Schafer (D. C. 1918), 254 Fed. 135; affirmed (1920), 251 U. S. 466, as to certain defendants.

An indictment alleged that defendants published a newspaper containing printed matter calculated and intended to induce eligible persons to refuse to enlist, and to induce persons liable to draft not to submit to registration and draft. Held, on demurrer, that the indictment states an offense under sec. 3, Title I of the espionage act (40 Stat. 217) as amended by act of May 16, 1918. U. S. v. Prieth (D. C. 1918), 251 Fed. 946.

Alleging false causes of war.-The publication of a pamphlet denouncing preparedness, inveighing against war, and characterizing military service as murder or attempted murder, is a violation of sec. 3 of the espionage act, since it tends to suppress patriotic feeling and to cause unrest and insubordination in the military forces. United States v. Routin (D. C. 1918), 251 Fed. 313.

The publication of a book that challenged the sincerity of America's war was a violation of this section. U. S. v. Binder (D. C. 1918), 253 Fed. 978.

Seditious utterances.-An indictment alleging that defendant, in the presence of several persons in a saloon, stated to a soldier that the Kaiser could "lick " England and France, and would soon come to the United States and then "all you men will have to kiss the Kaiser's hands and feet," states an offense under sec. 3 of the espionage act of June 15, 1917. U. S. v. Dembowski (D. C. 1918), 252 Fed. 894.

In addressing a public audience, a Soclalist lecturer sald, in substance, that any person who enlisted in the Army of the United States for service in France would be used for fertilizer, and that was all he was good for, and that the women of the United States were nothing more or less than brood sows to raise children to get into the Army and be made into fertilizer. She was held to have violated sec. 3 of the espionage act of June 15, 1917 (40 Stat. 219), which provides that "Whoever, when the United States is at war, ... shall willfully obstruct the recruiting or enlistment service of the United States, to the injury of the service of the United States, shall be punished" as the act directs. word "obstruct" means to hinder, impede, retard, or embarrass; and any efficient means likely to accomplish such a purpose

The

is within the condemnation of the statute. Mere words, without physical force, may be the most potent means of accomplishing those ends. It is not necessary for the Government to show that some particular person was induced not to enlist. The prohibited result will be presumed from the language and the circumstances. O'Hare v. United States (C. C. A. 1918), 253 Fed. 538; certiorari denied, 249 U. S. 598.

The defendant was indicted and convicted of violating the espionage act (40 Stat. 219), as amended by the act of May 16, 1918 (40 Stat. 553). The main theme of the defendant's speech was socialism, and he began by saying he had just returned from a visit to the workhouse, where three of their most loyal comrades were paying the penalty for their devotion, these three having been convicted of aiding and abetting another in failing to register for the draft. The records of these convictions were properly admitted in evidence to show what those grounds were in order to show what the defendant was talking about and to explain the true import and intent of the address. It was also proper to admit in evidence an "antiwar proclamation and program," coupled with testimony that about an hour before his speech the defendant had stated that he approved of that platform in spirit and in substance. It was proper to instruct the jury that they could not find the defendant guilty for advocacy of any of his opinions unless the words used had as their natural tendency and reasonably probable effect to obstruct the recruiting service, and unless the defendant had the specific Intent to do so in his mind. Debs v. U. S. (1919), 249 U. S. 211.

The publication of a pamphlet denouncing preparedness and characterizing military service as murder, held to be a violation of this section. U. S. v. Boutin (D. C. 1918), 251 Fed. 313.

It was not error to allow a witness to testify as to the impression made upon him by defendant's speech, though the witness could give only the substance of the speech. Trelease v. U. S. (C. C. A. 1920), 263 Fed. 886.

Language used by defendants in discussing the World War, the disasters of the Allies, and the successes of the enemy from day to day and week to week, in a shop used as a place of meeting, gossip, and discussion, which was obtained by the use of a dictaphone, held to support a conviction for favoring the cause of the enemy, and opposing the cause of the United States, in violation of the above section, and not within the First Amendment. Schoborg v. U. S. (C. C. A. 1920), 264 Fed. 1; certiorari denied, 253 Fed. 494.

Persons addressed.-An indictment alleged that the defendant willfully stated to diverse persons: "This is a rich man's war, and it is all a damn graft and swindle.

If you do not believe it, just look at the cost of wheat." Held, it does not allege a crime under this act, making it an offense willfully to make or convey false reports or statements with intent to interfere with the success of the military or naval forces, to cause insubordination in the Army and Navy, or obstruct recruiting; since it does not show that the words were communicated to persons whose hearing it was likely to produce the results sought to be avoided. The court said that since the prosecution could draw a new Indictment which would not be open to any doubt, it seemed best not to proceed to trial on the one under consideration. United States v. Schutte, 252 Fed. 212.

A laborer, in the presence of other laborers at a construction camp, abused the United States and the President in grossly indecent language. Some of the laborers present were within draft age, but no part of the military or naval forces of the United States was present. No recruiting or enlistment was in process near the camp. Held, the facts presented are not sufficient to establish a willful attempt to obstruct recruiting or enlistment under sec. 3 of this act. United States v. Mayer (D. C. 1918), 252 Fed. 868.

In the presence of a school-teacher who was in class IV of the selective draft, the president of a district school board refused to display the flag on a schoolhouse, and said that he would just as soon see a pair of old trousers hanging over the schoolhouse as the national flag. It could not be legitimately inferred that the language would cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces, within the meaning of this section. Von Bank v. U. S. (C. C. A. 1918), 253 Fed. 641.

For language constituting an offense, when used to a man subject to military or naval service, see White v. U. S. (C. C. A. 1920), 263 Fed. 17; certiorari denied, 253 U. S. 496.

In a prosecution under sec. 3 of the espionage act for obstructing the enlistment and recruiting service and for causing or attempting to cause insubordination in the military and naval forces, it appeared that in the presence of two forest officers the defendant gave utterance to an indecent outburst because of a fancied grievance against the Government. The forest officers were at the time engaged in recruiting for the Engineer military service. This fact was unknown to the defendant, and the language

used by him was wholly unrelated to such recruiting service. A verdict of acquittal should have been directed. Where words only are relied on, they must be considered in connection with all the circumstances. Doll v. United States (C. C. A. 1918), 253 Fed. 646.

To constitute the offense of attempting to incite disloyalty and refusal of duty in the military service, within the above section, it is not necessary that the persons against whom the defendant's activities were directed should have been mustered into the military service, but it is sufficient if such persons were within the conscription act. Howenstine v. U. S. (C. C. A. 1920), 263 Fed. 1, 4, and cases cited.

That statements made by defendant having a tendency to cause disloyalty on the part of a man subject to call for military service did not have that effect, and that he afterwards attempted to enlist, held immaterial. White v. U. S. (C. C. A. 1920), 263 Fed. 17; certiorari denied (1920), 253 U. S. 496.

The language of this section, making it an offense wilfully to attempt to cause insubordination, disloyalty, mutiny, and refusal of duty in the military and naval forces of the United States, or wilfully to obstruct the recruiting or enlistment service, is broad enough to include statements calculated to produce such results when made in presence of persons not in the military or naval forces, provided they are wilfully made and with the intent specified. Coldwell v. U. S. (C. C. A. 1919), 256 Fed. 805; certiorari denied, 250 U. S. 601.

It is not necessary that the false reporta and statements should be made in the presence of persons who are, or are liable to be, selected for military or naval service. Kirchner v. U. S. (C. C. A. 1918), 255 Fed. 301; certiorari dismissed, 250 U. S. 678; Hickson v. U. S. (C. C. A. 1919), 258 Fed 867.

It is not necessary to show any particular person was prevented from enlisting. O'Hare v. U. S. (C. C. A. 1918), 253 Fed. 538; Heynacher v. U. S. (C. C. A. 1919), 257 Fed. 61; certiorari denied, 250 U. S. 674.

While an indictment charging an attempt to cause insubordination in the military service must allege that the words were uttered under such circumstances that they were in the course of events likely to reach members of the military forces, an Indictment alleging publication of magazines calculated to cause insubordination and their distribution throughout New York and the rest of the United States is sufcient. U. S. v. Eastman (D. C. 1918), 252 Fed. 232.

Giving reasons, which at most are but matters of opinion, apparently honestly held, for not subscribing to the Liberty loan bonds and thrift stamps and contributing to the Red Cross fund, when requested for the same in the privacy of one's home and in the presence of nobody but a duly authorized committee, held not a violation of this section. U. S. r. Pape (D. C. 1918), 253 Fed. 270.

Statements made by defendant, in cach case to a single person in the course of a private conversation relating to the World War, held merely expressions of opinion, not in violation of this section. Sandberg c. U. S. (C. C. A. 1919), 257 Fed. 643.

"Military or naval forces."-An instruction that, for the purposes of the statute, the persons designated by the selective service act of May 18, 1917, registered and enrolled under it, and thus subject to be called into the active service, were a part of the military forces of the United States, held correct. U. S. r. Debs (1919). 249 U. S. 211.

It is not necessary that the persons against whom the defendant's activities were directed should have been mustered into the military service of the United States. It is sufficient if they were within the draft provisions and subject to call. Fairchild r. U. S. (C. C. A. 1920), 265 Fed. 584; Howenstine v. U. S. (C. C. A. 1920), 263 Fed. 1; Anderson v. U. S. (C. C. A. 1920), 264 Fed. 75; certiorari denied, 253 U. S. 495; Goldstein c. U. S. (C. C. A. 1919), 258 Fed. 908; Coldwell v. U. S. (C. C. A. 1919), 256 Fed. 805; certiorari denied, 250 U. S. 661; compare U. S. r. Hall (D. C. 1918), 248 Fed. 150. A man within the ages subject to call was a part of the "military forces," though outside the ages then required to register, and though he had tried to enlist and been rejected. White v. U. S. (C. C. A. 1920), 263 Fed. 17; certiorari denied, 253 U. S. 496; compare U. S. v. Mayer (D. C. 1918), 252 Fed. 868.

It is a violation of this section to make false statements or reports to recruits for the Canadian forces. Such statements tend to interfere with the successful operations of the Canadian recruiting offices authorized in the United States by 2914, 2915, post. Mead v. U. S. (C. C. A. 1919), 257 Fed. 639.

The phrase construed as including the American Red Cross and the Y. M. C. A.

U. S. v. Nagler (D. C. 1918), 252 Fed. 217; reversed, 254 U. S. ; compare Granzow v. U. S. (C. C. A. 1919), 261 Fed. 172.

service."

"Recruiting or enlistments Recruiting," as used in this section, means the gaining of fresh supplies for the forces, as well by draft as otherwise. Schenck v. U. S. (1919), 249 U. S. 47; U. S. v. Prieth (D. C. 1918), 251 Fed. 946.

The phrase, as here employed, signifies more than the mere induction into service of identified persons. It means the particu lar governmental function or establishment as a whole, and comprises the means, agencies, and instrumentalities which it adopts, or upon which it relies, to accomplish its object. O'Hare v. U. S. (C. C. A. 1918), 253 Fed. 538; certiorari denied, 249 U. S. 598: Fairchild v. U. S. (C. C. A. 1920), 265 Fed. 584.

State offenses.-Disloyal slanders or libels causing, or tending to cause, offenses against the State, can be prosecuted only in the State courts. U. S. v. Hall (D. C. 1918), 248 Fed. 150.

A State can make it an offense, inter alia, to utter contemptuous and slurring language about the flag and language calculated to bring the flag into contempt and disrepute, held constitutional and valid, as to offenses committed prior to the amendment of this section by the act of May 16, 1918. Ex parte Starr (D. C. 1920), 263 Fed. 145.

Motion pictures.-A moving picture calculated to sow discord between the United States and Great Britain during the World War held a violation of this section. Goldstein v. U. S. (C. C. A. 1919), 258 Fed. 908; U. S. r. Motion Picture Film "The Spirit of '76" (D. C. 1917), 252 Fed. 946.

Corporations. A corporation is within this section which declares a punishment for "whoever" in time of war wilfully obstructs the recruiting or enlistment service. U. S. v. American Socialist Society (D. C. 1918), 252 Fed. 223; (1919) 260 Fed. 885; affirmed (C. C. A. 1920), 266 Fed. 212.

Armistice. The United States did not cease to be at war, on the signing of the armistice with Germany, as respects commission of the offenses under this section. U. S. v. Steene (D. C. 1920), 263 Fed. 130. The war status at the time of the commission of the acts is a material consideration in determining charges of violation of the espionage act. U. S. v. Strong, (D. C. 1920), 263 Fed. 789.

146345°-21-VOL 2-28

1357