SEEBACH v. UNITED STATES, 262 F. 885

HOOK, Circuit Judge. Seebach was convicted of willful attempts to cause insubordination, disloyalty, and refusal of duty in the military forces of the United States when the United States was'at war, contrary to

section 3, tit. 1, of the Espionage Act of June 15, 1917 (40 Stat. 217, c. 30 [Comp. St. 1918, § 10212c]). The three counts of the indictment, under each of which there was a conviction, severally charged that the attempts were made by statements, counsel, and advice to three young men who had theretofore registered under the Draft Act of May 18, 1917 (40 Stat. 76, c. 15), as follows: To Harry Olson — “I do not think that the draft is right, to take the young men from this country and send them to another country, to protect the land of England and France.

Just think of sending the young men of this country to protect another country. They will go down to the bottom of the sea 20,000 at a time. I would rather see my son Carl shot than go to war against Germany. How did yon come out in the draft? Are you going, if you are called?” To Alf G. Nelson — “Do you know that a lot of the boys (meaning soldier boys) are going to refuse to go to France? The government cannot compel them to go.” To Henry D. Keitman, summarized from a conversation — “Are you the Keitman boy that enlisted? What did you do that for? Don’t you know you are a damn fool to do that?

Don’t you know Germany is going to win this war? Germany has enough resources and men to win the war. (Keitman: “Why, if you are so strong for Germany, why don’t yon move over there?”) No; no; that is not it. I am for America. I hope every American citizen who has bought Russian bonds will lose every cent he invested.” The right of free speech in time of war and the tendency of words spoken or written to affect injuriously the military preparations and operations of the government have been so often considered by the courts that an extended discussion of the sufficiency of the present indictment is unnecessary.

Time, place, and circumstance have everywhere much to do with the quality of human conduct, and this is true of the exercise of rights under the Constitution. The Constitution contains no invitation to destroy the fundamental structure of the government, to frustrate its duly ordered operations, or to lend aid to the public enemies. When the nation is at war, its very existence is in the scales, and the freedom of action and speech of the individual is qualified accordingly.

If this were not so, each one might determine for himself the validity or force of public statutes for the general safety; there could even be no such crime as treason. The tendency of the language above quoted, when addressed to men in the military service during the time mentioned, to cause insubordination, disloyalty, and refusal of duty, is obvious. An indictment which states that the language was uttered in willful attempt to cause that result charges an offense against the statute. Much of the argument of counsel is addressed to the evidence.

The question at the trial of a criminal case is whether the guilt of the accused has been shown beyond a reasonable doubt. Upon conviction and appeal it is whether the verdict below was supported by substantial evidence. Humes v. United States, 170 U. S. 210, 18 Sup. Ct. 602, 42 L. Ed. 1011. The appellate court does not weigh conflicting testimony or the credibility of witnesses. The verdict here clearly stands this test. The recommendation of leniency by the jury is argued as impairing the effect of the evidence against the accused.

But, if we could consider it, such a recommendation would seem to proceed upon the assumption of guilt, not of innocence. We cannot know what other considerations induced it, nor say that the discretion of the trial court invoked by the recommendation was not duly exercised. Evidence that the accused made statements to other persons similar to those set forth in the indictment was received in rebuttal, after he had denied them. It was proper for impeachment. Furthermore the evidence would have been admissible in chief to show intent. Exchange Bank v. Moss, 79 C. C. A. 278, 149 Fed. 340.

Being relevant for that purpose, admission in rebuttal instead of in chief was not reversible error. Goldsby v. United States, 160 U. S. 70, 16 Sup. Ct. 216, 40 L. Ed. 343. It appeared without dispute or contradiction at the trial that the three young men named in the indictment had registered in accordance with the Draft Act of May 18, 1917. The trial proceeded upon that assumption, and the court in charging the jury said that they were therefore in the military forces of tire United States, within the meaning of

section 3 of the Espionage Act. An exception was taken to this conclusion, but it was correct. See Debs v. United States (March 10, 1919) 249 U. S. 211, 39 Sup. Ct. 252, 63 L. Ed. 566. Though the above was the only exception taken, counsel extends the argument to other parts of the charge. Passing the failure to direct the attention of the trial court to them, we see no merit in the criticisms. The court correctly defined the term “willfully” as used in the Espionage Act. Elsewhere in the charge it used intent to cause insubordination, etc., as equivalent to willfulness. This was right. Chicago, B. & Q. R. Co. v.

United States, 114 C. C. A. 334, 194 Fed. 349. It is difficult to see how the attempt was not willful, if the result was intended and the means employed reasonably calculated to attain it. Complaint is made that the court took judicial notice that the United States was at war during the times covered by the indictment. So far as judicial notice is concerned, see United States v. Hamburg-American Co., 239 U. S. 467, 36 Sup. Ct. 212, 60 L. Ed. 387; Louisville Bridge Co. v. United States, 242 U. S. 409, 37 Sup. Ct. 158, 61 L. Ed. 395; Oetjen v. Central Leather Co., 246 U. S. 297, 38 Sup. Ct. 309, 62 L. Ed. 726.

Judicial notice having been properly taken of a fact not embracing the entire issue made by the plea of not guilty, it was not necessary to submit it to the decision of the jury. In effect it became a matter of law for the court to instruct them. “It lias long been the settled doctrine of this court that the evidence before the jury, if clear and uncontradicted upon any issue made by the parties, presented a question of law, in respect of which the court could, without usurping the functions of the jury, instruct them as to the principles applicable to the case made by such evidence.” Rosen v.

United States, 161 U. S. 29, 16 Sup. Ct. 434, 480, 40 L. Ed. 606. This especially applies to facts judicially noticed. Nothing more in the case requires attention. The sentence is affirmed.