See End of Index for Tables of Federal Cases in Other Reports

CASES

ARGUED AND DETERMINED

IN THE

UNITED STATES CIRCUIT COURTS OF APPEALS, THE DISTRICT COURTS, AND THE COURT OF

APPEALS OF THE DISTRICT

OF COLUMBIA

HOWENSTINE et al. v. UNITED STATES.

(Circuit Court of Appeals, Ninth Circuit. February 2, 1920. Rehearing Denied April 5, 1920.)

1. INDICTMENT AND INFORMATION

No. 3302.

91(1)—No NECESSITY OF CHARGING WILL

FULNESS UNLESS AN ELEMENT OF OFFENSE.

It is the general rule that it is not necessary to charge that the offense was committed willfully, unless the statute defining the same makes willfulness an element thereof.

2. INDICTMENT AND INFORMATION 91(3)-"FELONIOUSLY" AND "UNLAWFULLY" EQUIVALENT TO "WILLFULLY."

Words which import an exercise of the will, such as "feloniously" and "unlawfully," will supply the place of the word "willfully" in an indict

ment.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Feloniously; Unlawfully; Willful.]

3. INDICTMENT AND INFORMATION

FUL."

91(3)-NOT NECESSARY TO USE WORD "WILL

Where the facts alleged necessarily import willfulness, the failure to use the word is not fatal to the indictment.

4. ARMY AND NAVY 40-WHAT CONSTITUTES ATTEMPTING TO INCITE DISLOYALTY IN "MILITARY SERVICE" STATED.

To constitute the offense of attempting to incite disloyalty and refusal of duty in the military service, within Espionage Act, tit. 1, § 3 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10212c), it is not necessary that the persons against whom defendants' activities were directed should have been mustered into the military service, but it is suflicient if they were within the provisions of the Conscription Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 2044a-2044k), or were or might be subject to military service.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Military Service.]

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 263 F.-1

5. CONSPIRACY ~43 (5)-UNNECESSARY TO ALLEGE HOW OVERT ACTS WOULD AFFECT OBJECT OF CONSPIRACY.

In an indictment for conspiracy, it is not necessary to allege the manner in which the overt acts charged would tend to effect the object of the conspiracy; the purpose of such allegations being to show that something was done with intent to carry the conspiracy into effect.

6. ARMY AND NAVY 40—OTHER SEDITIOUS STATEMENTS ADMISSIBLE TO SHOW INTENT.

In a prosecution for attempt 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 then state of mind and feeling of defendant.

7. CRIMINAL LAW 429 (1)—OFFICIAL RECORD OF DRAFT EXAMINATION ADMIS

SIBLE IN PROSECUTION FOR INCITING REFUSAL OF MILITARY DUTY,

The official record of examinations of a draftee, as showing prima facie the grounds on which he was rejected, held admissible on a trial for attempting to incite refusal of duty in the military service by so treating the eyes of said draftee and others as to cause defective vision and consequent rejection.

8. CRIMINAL LAW ~413 (1)-DEFENDANTS' LOYAL STATEMENTS INADMISSIBLE IN PROSECUTION FOR INCITING DISLOYALTY.

In a prosecution for attempting to incite disloyalty and refusal of duty in the military service, evidence of the expression of loyal sentiments by defendants held properly excluded.

In Error to the District Court of the United States for the Southern Division of the Southern District of California; Benjamin Bledsoe, Judge.

Criminal prosecution by the United States against Frank P. Howenstine and Idell Kennedy. Judgment of conviction, and defendants bring error. Affirmed.

The plaintiffs in error were indicted for violation of the provisions of the Espionage Act (Act June 15, 1917, c. 30, 40 Stat. 217). The indictment contained three counts. Howenstine was found guilty as charged in the second count. Kennedy was found guilty as charged in the first and second counts. Le Roy, who was indicted with them, was found not guilty on all the counts. The indictment, in brief, charged in the first count that the defendants unlawfully and feloniously conspired, combined, confederated, and agreed together to commit the offense of unlawfully, feloniously, and willfully causing and attempting to cause insubordination, disloyalty, and refusal of duty in the military and naval forces of the United States when the United States was at war, through and by means of soliciting persons too numerous to mention, who were subject to and might be subject to service in the military and naval forces of the United States, to go to an oculist and optician and be fitted with eyeglasses that would so impair their vision and physical condition that they would thereby be rejected and discharged from service in said military and naval forces, and by also advising said persons that the President of the United States was an Englishman, and that he and the United States were fighting England's battles, which said solicitation and advice were designed and intended to cause and to attempt to cause insubordination, disloyalty, and refusal of duty in the said military and naval forces, and failure and refusal on the part of said available persons to enlist therein when the United States was at war, and another offense against the United States, to wit, the offense of unlawfully, feloniously, and willfully, by and through the means last aforesaid, of obstructing the recruiting and enlistment service of the United States when the United States was at war, to the injury of the service of the United States.

One overt act charged under the first count was that the defendant Kennedy, on or about November 5, 1917, advised one John S. Pullen that the President

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(263 F.)

of the United States was an Englishman, that he and the military and naval forces of the United States were fighting England's battles, and that the United States was fighting for an unjust cause; said Pullen being then and there, as the defendant well knew, duly registered under the Act of May 18, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 2044a-2044k), and not in any wise exempt therefrom. Another overt act alleged was that on or about November 12, 1917, the defendant Kennedy solicited John S. Pullen to present himself, when drafted, to the defendant Howenstine, for the purpose of having the latter fit eyeglasses to Pullen's eyes, so as to impair his vision and physical condition, so that he would thereby he rejected and discharged from service in the military establishment of the United States; he being then and there, as the defendant Kennedy well knew, duly registered under the Act of Congress of May 18, 1917, and not exempt in any wise from service. The third overt act was that the defendant Kennedy, on or about December 29, 1917, made statements to George F. Simpson similar to those which she had made to Pullen; said Simpson being then and there, as said defendant well knew, duly registered under the Act of Congress of May 18, 1917, and not exempt, etc. The fourth overt act was that on or about December 29, 1917, the defendant Kennedy solicited Simpson to present himself to the defendant Howenstine for the same purpose and under the same circumstances as are charged in regard to Pullen. The fifth overt act was that on or about November 2, 1917, the defendant Howenstine fitted to the eyes of Joseph Le Roy a pair of glasses for the purpose of so impairing his vision and physical condition that he would thereby be discharged and rejected from the military establishment of the United States by the examining physician and surgeon thereof at Camp Lewis, state of Washington; Le Roy being then and there, as Howenstine well knew, duly registered under the Act of May 18, 1917, and the proclamation of the President pursuant thereto, and not in any wise by law exempt from service.

The second count of the indictment charged that the defendants did on or about November 2, 1917, knowingly, willfully, and unlawfully cause and attempt to cause insubordination, disloyalty, mutiny, and refusal of duty in the military and naval forces of the United States when the United States was at war, in that they did fit, obtain, sell, supply, and furnish to the said Le Roy a pair of eyeglasses for the purpose of so impairing his vision and physical condition that he would thereby be rejected and discharged from the military establishment of the United States by the examining physician and surgeon of said establishment at Camp Lewis, state of Washington, which said fitting, obtaining, selling, supplying, and furnishing said eyeglasses was designed and intended to cause insubordination, disloyalty, mutiny, and refusal of duty in the military and naval forces of the United States when the United States was at war; said Le Roy being then and there, as said defendants well knew, duly registered under the Act of May 18, 1917, and the proclamation of the Prestdent, and not in any wise by law exempt from military service.

A. I. McCormick, G. C. De Garmo, and Davis & Rush, all of Los Angeles, Cal., for plaintiff in error Kennedy.

Frank Dominguez, W. H. Dehm, and Paul W. Schenck, all of Los Angeles, Cal., for plaintiff in error Howenstine.

Robert O'Connor, U. S. Atty., and W. Fleet Palmer and Gordon Lawson, Asst. U. S. Atty., all of Los Angeles, Cal.

Before GILBERT, MORROW, and HUNT, Circuit Judges.

GILBERT, Circuit Judge (after stating the facts as above). [1-3] Demurrers were interposed to the indictment, and error is assigned to the orders of the court overruling the same. It is contended that the first count is fatally defective for the reason that the conspiracy and the overt acts set forth are not alleged to have been willful. To this

it is sufficient to say that the definition of the offense of conspiracy under which the defendants were indicted does not contain the word "willful," or any provision to indicate that it was the intention of Congress to make willfulness an ingredient of the offense. The indictment in the first count does, however, charge that the conspiracy was entered into unlawfully and feloniously, and each of the overt acts is alleged to have been done in pursuance of said unlawful and felonious conspiracy, and it is charged that the conspiracy was to commit the offense of unlawfully, feloniously and willfully causing and attempting to cause insubordination, etc. It is the general rule that it is not necessary to charge that the offense was done willfully, unless the statute defining the same makes willfulness an element thereof; and it is also generally held that words which import an exercise of the will, such as "feloniously" and "unlawfully," will supply the place of the word "willfully." Flint v. Com., 81 Ky. 186, 23 S. W. 346; Aikman v. Com., 18 S. W. 937, 13 Ky. Law Rep. 894; State v. Robbins, 66 Me. 324; Harding v. State, 94 Ark. 65, 126 S. W. 90; Halley v. State, 108 Ark. 224, 158 S. W. 121. And this court has held that, where the facts alleged necessarily import willfulness, the failure to use the word is not fatal to the indictment. Van Gesner v. United States, 153 Fed. 46, 82 C. C. A. 180; Holsman v. United States, 248 Fed. 193, 160 C. C. A. 271.

[4] The contention is made that the acts charged in the indictment as means for carrying out the conspiracy were directed wholly to persons who were not in the service of the United States, and that therefore such acts could not tend to create insubordination, disloyalty, mutiny, and refusal of duty in the military and naval forces of the United States. But it was 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 provisions of the Conscription Act and subject to call. Goldstein v. United States, 258 Fed. 908, · C. C. A. —; Coldwell v. United States, 256 Fed. 805, C. C. A.

We find no merit in the contention that the first count is defective for failure to charge that the defendants conspired to commit any specific acts. The count charges in clear terms a conspiracy to cause insubordination, disloyalty, and refusal of duty in the military and naval forces of the United States, "and this through and by means of soliciting persons," etc. The gist of the offense was the conspiracy, and it was not necessary to specify the means by which it was intended to accomplish the result. A conspiracy may be criminal, even if no means were agreed upon specifically. Frohwerk v. United States, 249 U. S. 204, 39 Sup. Ct. 249, 63 L. Ed. 561.

Nor do we find the first count defective in its charge of conspiracy to obstruct the recruiting and enlistment service of the United States, to the injury of that service. It is objected that there is no allegation that the persons to whom disloyal statements were made as charged were registered, or of age to require registration, or of an age to qualify them to enlist. But the indictment charges that they were persons. "who were subject to and might be subject to" service in the military and naval forces of the United States, and that is sufficient. Rhuberg