EQUI v. UNITED STATES, 261 F. 53

RUDKIN, District Judge (after stating the facts as above). While a considerable number of errors have been assigned, they all go either to the sufficiency or form of the indictment, of to the competency of certain testimony admitted by the court over the objection of the plaintiff in error.

The objections to the indictment are threefold: First, because the crime defined by the Espionage Act is analogous to the crime of libel, and the indictment under consideration does - not conform to legal requirements in such cases; second, because the several counts of the indictment are duplicitous; and, third, because the Espionage Act itself is unconstitutional and void. The distinction between the crime of libel and the crime defined by the Espionage Act was pointed out by this court in the recent case of Kumpula v. United States, 261 Fed. 49, —— C. C. A. ——, where a similar indictment was upheld.

The charge of duplicity is not discussed in the brief, and the indictment seems to conform to common usage in such cases. It charges the willful use of language well calculated to produce the different results condemned by the statute; it informs the defendant of the nature of the accusation against her; it is sufficiently definite to enable her to take advantage of a former conviction or acquittal, and to enable the court to determine whether the facts charged, if proved, constitute a crime under the law. More than, this the law does not require.

The validity of the Espionage Act is assailed upon two grounds: First, because the crime there defined is treasonable, and is punishable as treason, or not at all, under

section 3 of

article 3 of the Constitution of the United States; and, second, because it is violative of

article 1 of the Amendments to the Constitution of the United States, in that it abridges the freedom of speech and of the press. These criticisms are fully answered by recent decisions of the Supreme Court of the United Stales. In Frohwerk v. United States, 249 U. S. 204, 39 Sup. Ct. 249, 63 L.

Ed. 361, the court said: “Some reference was made in the proceedings and in argument to the provision in tho Constitution concerning treason, and it was suggested on tho one hand that some of the matters dealt witli in the act of 1917 were treasonable, and punishable as treason, or not at all, and, on the other, that the acts complained of not being treason could not bo punished. These suggestions seem to us to need no more than to be stated.” In Schenck v. United States, 249 U. S. 47, 39 Sup. Ct. 249, 63 L.

Ed. 470, the court said: “We admit that in many places and in ordinary times the defendants, in saying all that was said in the circular, would hare been within their constitutional rights. But tile character of every act depends upon (lie circumstances in which it is done. Akins v. Wisconsin, 195 U. S. 194, 205, 206, 25 Sup. Ct. 9, 49 L. Ed. 147. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v.

Buck’s Stove & Range Co., 221 U. S. 418, 439, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. S. A. (N. S.) 874. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.

When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no court could regard them as protected by any constitutional right.” So in the Debs Case, 249 U. S. 211, 39 Sup. St. 252, 63 L. Ed.-, the court said: “The main theme of the speech was Socialism, its growth, and a prophecy of its ultimate success.

With that we have nothing to do, but if a part or the manifest intent of the more general utterances was to encourage those present to obstruct the recruiting service, and if in passages such encouragement was directly given, the immunity of the general theme may not be enough to protect the speech.” The general government has full power to declare war and raise armies, and it has every power necessary and appropriate to carry these express powers to a successful issue, and to deny to it the power to prohibit acts which directly interfere with the operation of the government in raising armies and in prosecuting the war is to deny to it one of the most common and ordinary attributes of sovereignty.

The court admitted testimony tending to show the import of speeches and declarations made by the plaintiff in error in the city of Portland prior to the date in question and prior to the passage of the act under which the indictment was returned. The reason for admitting this class of testimony was thus explained by the court: “Evidence bas been received, also, of things claimed to have been done and said by her on still other occasions.

All this evidence, as I have stated to you and now repeat, was admitted solely for one purpose, namely, that you might determine therefrom, and from the other evidénce on the point, what defendant’s purpose or intent was in making the statements imputed to her in the indictment, in the event that you find such statements were actually made.” Counsel earnestly insisted that this ruling was erroneous, for the reason that an illegal intent can never be inferred from a legal act.

This argument is based upon- the ground that the prior statements and declarations of the accused were made at a time when such statements and declarations were not prohibited by law, and therefore the testimony was incompetent. This objection has also been answered by this court in Rhuberg v. United States, 255 Fed. 865, - C. C. A. -.

Similar testimony was there admitted, and its application similarly restricted by the court, and in passing upon the objection this court said: “This evidence of statements of the defendant made .prior to the entry of the United States into the war, thus restricted and limited by the court, was clearly admissible under a well-known rule of evidence upon that subject.” ' The theory upon which such testimony is admissible is that— “A repetition of acts of the same character naturally indicates the same purpose in all of them; and if, when considered together, they cannot be reasonably explained without ascribing a particular motive to the perpetrator, such motive will be considered as prompting each act.” New York Mut.

L. Ins. Co. v. Armstrong, 117 U. S. 591, 6 Sup. Ct. 877, 29 L. Ed. 997. While the statements and declarations made by the plaintiff in error prior to the passage of the act under which the indictment was returned were not criminal, it was nevertheless competent for her at that time to oppose the war, and commit every act which was later prohibited, and her intent and purpose did not depend in the slightest degree upon the state of the law at the time of her several utterances. This disposes of all the assignments we deem worthy of notice, and, finding no error in the record, the judgment is affirmed.