STENZEL v. UNITED STATES, 261 F. 161

STONE, Circuit Judge. From conviction for violation of Espionage Act June 15, 1917, c. 30, 40 Stat. 217, the defendant brings his writ of error. The-indictment was in two counts, based upon the same language, charged to have been uttered January 28, 1918; The first count charged obstruction of the enlistment service; the second, actual and attempted causation of insubordination, disloyalty, and refusal of duty in the military forces. The theory of the defense was that the defendant was so intoxicated that he was incapable of entertaining the necessary criminal intent.

Stenzel relies here upon seven assigned errors. One assignment is a claimed abuse of judicial discretion in denying the application of accused for a continuance. The motion is not in the record, and the record is so meager that we cannot say whether or not the assignment is well taken. The contention is, however, unimportant, since the judgment must be reversed for other reasons.

Another assignment is that witness Hettindorf, on objection, was not permitted to answer the question, “Did you ever hear him [defendant] make any remarks against this government before that time?” If there was any error in this ruling, it was harmless to defendant, since the most favorable answer to him would have produced purely negative evidence of a general character. Two other assignments object to the reception of the evidence of witnesses Rice and Cullinane as to disloyal utterances of defendant in November and October, 1917, respectively.

This testimony bore upon the intent of defendant and was clearly admissible. Another assignment was the striking out by the court, on motion, of evidence by defendant that a hostile witness, Cullinane, owed him $5, which he had refused to pay, though asked for it a number of times. This was error, but of too little importance to be seriously considered. Its only tendency would be, in a rather slight way, to show bias on the part of Cullinane. The other two assignments deal with portions of the charge, and will be considered together, as they raise the same point.

These parts of the charge are; “Now, it is claimed that this man was intoxicated. I need not say to you that a defendant, who has committed an offense or crime, cannot plead intoxication to defeat the consequences of his crime; it might be shown in mitigation of damages, but it cannot be considered rightly as a defense; at most it might be a circumstance in mitigation, but this is for the court to find.” “I don’t know as there is anything further that I can say to you. The questions for you to determine are confined within a narrow compass.

Did the defendant make these stateme-ni s with which he is charged in these two counts of the indictment? If he did so make them, say so by your verdict.

If he did not do so, and did not make them with the intent and purpose stated, discharge him.” These quotations, which followed each other in the above order in the charge, were preceded by the following; “It has been stated in behalf of defendant that the proof must show that his alleged words were willfully, maliciously, and intentionally said by him. ‘Willfully,’ as used in the Espionage Act, means ‘with an unlawful purpose, done with intent to do the acts that are forbidden by this statute.’ It is for you to say for what purpose these statements were made by the defendant, if you find they were made by him.

Ordinarily a man is presumed to intend the natural and probable consequences of his own deliberate statements or acts, and the only way, in most cases, that you can determine what a man’s intentions and purposes are, would be from such statements deliberately made.” These quotations contain those parts of the charge which deal with the matter of intoxication. While there was conflict in the evidence as to the fact or degree of intoxication at the time of the alleged statements by Stenzel, yet there was distinct and positive evidence that Stenzel was so drunk at that time that he did not know what he was saying.

In this state of the evidence he was entitled to have the jury pass upon the question of whether or not he was at the time so drunk that he was incapable of entertaining the specific criminal intent required by the Espionage Act. Hopt v. People, 104 U. S. 631, 26 L. Ed. 873; Tucker v. U. S., 151 U. S. 164, 169, 14 Sup. Ct. 299, 38 L. Ed. 112; Winston v. U. S., 172 U. S. 303, 311, 19 Sup. Ct. 212, 43 L. Ed. 456; 8 R. C. L. 131; 16 C. J. 107. Obviously the court denied him this right, thus depriving him of the only defense he was seriously presenting. The judgment is reversed.