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3. That it is insufficient in that it fails to state the means or the method of personal solicitation either by an identification of the person or persons soliciting or the person or persons solicited, or by or through what means or method the defendants agreed to solicit.

4. That the count in said indictment is insufficient in that it fails to state with particularity the contents or the substance of the “divers public speeches”, by whom said public speeches were made, or when and where they were made

and fails to charge the character or context or substance of the speeches 154 agreed upon or which the defendants are alleged to have conspired to

make. 5. That it is insufficient in that it fails to state with sufficient particularity the character or contents agreed upon between the alleged conspirators which was to be contained in or printed, published and circulated by newspapers, dodgers, or periodicals.

6. That it is insufficient in that it attempts to charge an offense by way of conclusions of the pleader without a statement of facts or circumstances from which the defendants or the court is apprised or informed of the offense attempted to be charged in said indictment.

7. That it is insufficient in that it fails to charge how, and by what means as a result of any unlawful conspiracy the defendants committed the alleged crime against them.

8. That it is insufficient in that it attempts to describe a crime by referring to purported files of papers, dodgers, leaflets, etc., and by reference to divers cartoons, illustrations, printed postcards, books, magazines, bulletins and billboard posters, wholly failing to set forth the context or contents of said printed matter or a description of said alleg cartoons, whereby, or through which it might appear, or by or through which it is charged by the Government that the defendants committed the alleged crime, or by or through which said alleged acts grew out of an unlawful conspiracy.

9. That it is insufficient in that it fails to state what or where, or the circumstances wherein it was agreed that printed matter was to be distributed, or speeches made to members, or in the presence of members constituting the military and naval forces of the United States or persons available for mili. tary service.

10. That it is insufficient in that it fails to state with sufficient particularity what the defendants unlawfully conspired to impose as their advice upon per sons whom they should meet within said division, district and elsewhere in tho

United States; or who should apply to said defendants; or who should 155 attend public meetings in said division and district, where said alleged

speeches were to be delivered. 11. That it is insufficient in that it omits to state by language, description of circumstances, acts, or facts, by, through or how the defendants proposed or conspired to advise or solicit or wilfully to cause insubordination, or wilfully to cause disloyalty, or wilfully to cause a refusal of duty in the military and naval forces; or wilfully to obstruct the recruiting and enlistment service of the United States to the injury of the United States.

12. That it is insufficient in that it charges four different offenses, to-wit: (1st) willfully to, cause insubordination (2nd) disloyalty (3rd) refusal of military duty in the military and naval forces of the United States (4th) to obstruct the recruiting and enlistment service of the United States, to the injury of the United States.

13. That it fails to come within the act upon which said count purports to je based, in that it fails to set forth statments made in writing or orally, acts or circumstances from which it appears that said defendants by misrepresentaion, subtlety and by indirection pretended to conceal disloyalty to the United States.

14. That it is insufficient in that it fails to show wherein misrepresentation of facts were made by the defendants, or wherein the defendants agree to misepresent facts.

15. That it is insufficient in that it fails to allege any overt acts, performed ir shown to be by proper allegations the result and outgrowth of said alleged Conspiracy and perpetrated with the object of carrying said conspiracy into Itect.

16. That said indictment is insufficient in that the purported alleged Overt Acts in said indictment are not made a part of and do not constitute as presented in said indictment an integral part of the count charging conspiracy n said indictment.

'17. That it is insufficient in that it fails to charge an unlawful agreement independent of Overt Acts.

18. That it is insufficient in that it fails to state in what way, or in 156 what manner, or how the recruiting and enlistment service of the United

States was injured by said alleged conspiracy. 19. That it is insufficient in that it fails to state how or in what manner the recruiting and enlistment service of the United States was obstructed.

20. That it fails to charge an offense in that the act upon which the alleged charge is predicated is in violation of Article One of the Amendments of the Constitution of the United States, which provides :

Congress shall make no law respecting the Establishment of religion; or prohibiting the free exercise thereof; or abridging the Freedom of speech, or of the press; or the right of the people peaceable to assemble and to petition the Government for a redress of grievances”.

21. That the matters and things set forth as therein alleged and set forth, are not sufficient in law to compel the said defendents to answer thereto as herein specifically and generally averred, and this the defendants are respectively ready to verify.

Wherefor, said defendants pray judgment that they may be dismissed and discharged he said indictment.

VICTOR L. BERGER
ADOLPH GERMER
J. LOUIS ENGDAHL
WILLIAM F. KRUSE
IRWIN ST. JOHN TUCKER

Defendants.
By SEYMOUR STEDMAN

CHARLES H. SOELKE
SWAN M. JOHNSON

Their Attorneys.

157

Endorsed: G. No. 6260 District Court of United States. United States of America vs. Victor L. Berger, et al Demurrer. Filed Oct. 21, 1918, --- o'clock --M. T. C. MacMillan, Clerk.

at

158 And afterwards, to wit, on the 21st day of October, A. D. 1918, there

was filed in the Clerk's Office of said Court, in the above entitled cause, a Plea of Former Acquittal; same being the words and figures following, to wit:

159

IN THE UNITED STATES DISTRICT COURT,

Northern District of Illinois

Eastern Division

decas]

United States of America

V8.
Adolph Germer (impleaded)

PLEA OF FORMER ACQUITTAL. And the said Adolph Germer, the defendant in the above entitled cause, in person and by Seymour Stedman, Charles H. Soelke, and Swan M. Johnson, his attorneys, comes into court here and having heard the indictment read, says that the said United States ought not further to prosecute the said indietment against him in respect to the offense in said indictment meutioned, because he says that theretofore, to-wit, on the 12th day of September, A. D. 1917, in the District Court of the United States for the Western District of Michigan, Southern Division, the Grand Jurors of the said United States for said District upon their oathis presented and returned in open court an indictment against him, the said Adolph Germer, which said indictment is in words and figures as follows, to-wit:

“IN THE DISTRICT COURT OF THE UNITED STATES
For the Western District of Michigan,

Southern Division.
The United States,

18.
ilenn G. Fleser, Benjamin A. Faulkner,

Indictment for James W. Clement, Sr., Glenn H. Pangborn,

Conspiracy, Benjamin Blumenberg, Adolph Germer, Dan

No. 1693. iel Roy Freeman, Charles J. Callaghan, Charles G. Taylor, Claus Oosterhuis, Martin E. Elzinga, Viva Flaherty, Vernon Kilpatrick. Sept. 12, 1917-indictment returned by the Grand Jury and filed October nd, 1917,-all of the above named defendants except Adolph Germer be in ourt and place at the bar thereof, waived the reading of the indictment and tool mute; whereupon it was ordered that a plea of not guilty be entered

in their behalf. 60 Oct. 3, 1917,—The defendant, Adolph Germer, being in Court and at

the bar thereof, waived the reading of the indictment, and stood mute; vhereupon it was ordered that a plea of not guilty be entered in his behalf.

Oct. 18, 1917,—The Jury sat together in the jury seats and heard the conlusion of the evidence adduced before them, and after listening to the argudents of counsel, and receiving the charge of the court, the jury retired in harge of a bailiff duly sworn and, after being absent for a time, returned nto Court and on their oaths say that they find the defendants not guilty as harged; whereupon it was found and adjudged that the defendants are not uilty as charged, and that they be discharged.

UNITED STATES OF AMERICA,

THE DISTRICT COURT OF THE UNITED STATES

For the Western District of Michigan,

Southern Division.

At a stated Term of the District Court of the United States of America, for he Western District of Michigan, Southern Division, begun and held within nd for the district and division aforesaid, on the first Tuesday of June in the ear of our Lord one thousand nine hundred and seventeen, and continued by djournment to and including the 12th day of September in the year of our ord one thousand nine hundred and seventeen.

Vestern District of Michigan, }ss.

outhern Division. The Grand Jurors of the United States of America, duly summoned, emaneled, and sworn within and for the Division of the District aforesaid, on heir oath present:

Count 1.

That on the eighteenth day of May in the year of our Lord one thousand ine hundred and seventeen, the President of the United States of America uly issued his Proclamation as provided by the Act of Congress approved lay 18, 1917, entitled "An Act to Authorize the President to increase tempoarily the Military Establishment of the United States," in which said Proclalation the President of the United States duly proclaimed and gave notice to Il persons subject to registration in the several states and in the District of Columbia, in accordance with the Act of Congress approved May 18, 1917, that he time and place of such registration shall be between 7 A. M. and 9 P. M. f the fifth day of June in the year of our Lord one thousand nine hundred nd seventeen at the registration place in the precinct wherein they may have heir permanent homes; that those male persons who shall have attained their wenty-first birthday, and who shall not have attained their thirty-first birthay on or before the day therein named are required to register, excepting nly officers and enlistment men of the regular army, the Navy, the Marine orps, and the National Guard and Naval Militia, while in service of the nited States and officers in the corps and enlisted men in the Enlisted RePrve Corps while in Active Service.

161 And the Grand Jurors, aforesaid, upon their oath aforesaid, do fur

ther present, that Glenn G. Fleser, Benjamin A. Falkner, James W. Clement, Sr., Glenn H. Pangborn, Benjamin Blumenberg, Adolph Gerluer, Daniel Roy Freeman, Charles J. Callahan, Charles G. Taylor, Martin E. Elzinga, Viva Flaherty, Class Osterhuis, and Vernon Kilpatrick, (thereinafter referred to as defendants), late of the City of Grand Rapids, in the County of Kent, in the division and district aforesaid, heretofore, to-wit, on the eighteenth day of May, A. D. 1917, and on each and every day thereafter up to and including to-wit the 5th day of June, A. D. 1917, at said County of Kent, in said division and district and within the jurisdiction of this court then and there unlawfully, wilfully, knowingly and feloniously did conspire and agree together and to and with divers other persons to the Grand Jurors unknown to permit an offense against the United States, that is to say, the said defendants unlawfully, wilfully, knowingly and feloniously did conspire and agree together and to and with said divers other persons to the Grand Jurors unknown to unlawfully aid, abet, counsel, command, induce and procure divers persons whose names are to the Grand Jurors unknown, and who then and there were male persons between the ages of twenty-one and thirty years, both inclusive, and who then and there and thereafter on the fifth day of June, A. D. 1917, were and would be subject to registration in accordance with the regulations prescribed by the President and not in any wise exempt therefrom and upon proclamation by the President and other public notice given by him and by and under his direction stating the time and place of such registration and being under the duty as persons of the designated ages (other than officers) and enlisted men of the regular army, the Navy the Marine Corps and the National Guard and Naval Militia, while in the service of the t'nited States and officers in the Officers Reserve Corps and enlisted men themselves for and submit to registration under the provisions of said Act of Congress, approved May 16, 1917, unlawfully and wilfully to fail and refuse to present themselves for registration and to submit tliereto as provided by the said act of Congres approved May 18, 1917. and as provided by the said Act of Congress, approved May 18, 1917, and said proclamation and regulations pursuant thereto.

Overt Acts.

And the Grand Jurors aforesaid, on their oaths aforesaid do further present that certain of said defendants hereinafter named at the several times and places in that behalf hereinafter mentioned did do certain acts to effect the object of said unlawful and felonious conspiracy and combination, that is to say:

1. That on or about, to wit, the eighteenth day of May, A. D. 1917, at to-wit, said City of Grand Rapids in said Division of said District and wit in the jurisdiction of this court the said defendant, Glenn G. Fleser, the and there did distribute and deliver to Monroe Cowens of said City of Grand Rapids and to other persons to the Grand Jurors unknown a leaflet known as Number 5 of the Series of Organization Leaflets to be issued monthly by the National Office Socialist Party at Chicago, Illinois, and entitled, to-wit I'roclamation and War Program, a printed and true copy of which is hereta attached and marked Exhibit "A" and made a part thereof.

2. That on or about to-wit the 20th day of May, A. D. 1917, at to-wit said City of Grand Rapids in said Division of said District and within the juris

diction of this court and said defendant, Daniel Roy Freeman then and 162 there did place, and cause to be placed, for distribution at a certain

place in said City of Grand Rapids to wit "All Souls Church", so-called a number of to-wit, One hundred of said Leaflets last above described, to-wit said Leaflet No. 5, entitled “Proclamation and War Program ", a printed and true copy of which is hereto attached and marked Exhibit "A" and made a part hereof.

3. That on or about to-wit, the 27th day of May, A. D. 1917, at to-wit said City of Grand Rapids, in said division of said District and within the juris diction of this court, the said defendant, Daniel Roy Freeman, then and ther did place, and cause to be placed, for distribution at a certain place in sid City of Grand Rapids, to-wit, "All Souls Church ", so-called, a number to-wit one hundred of said Leaflet last above described, to-wit said Leaflet No. entitled “Proclamation and War Program ", a printed and true copy of whid is hereto attached and marked " Exhibit "A" and made a part hereof.

4. That on or about to-wit, the 24th day of May, A. D. 1917, at towit said City of Grand Rapids, in said division of said district, and within the jurisdiction of this court, said defendant Viva Flaherty then and there did order of, to-wit, The Furniture City Printing Company, of said City of Grand Rapids, a quantity, to-wit, Fifteen thousand copies to be printed of a certain leaflet or folder, to-wit, an anti-conscription leaflet, so-called, ending as follows, to-wit "Repeal the Conscription Act” a printed and true copy of which said leaflet or folder is hereto attached and marked Exhibit “B” and made a part hereof.

5. That on or about, to-wit, the 26th day of May, A. D. 1917, at to-wit, said City of Grand Rapids, in said division of said district, and within the jurisdiction of this court, the said defendant, Viva Flaherty, then and there did receive a quantity, to-wit fifteen thousand printed copies of said anti-conscription leaflet or folder so-called, last above described, ending as follows: to-wit, “Repeal the Conscription Act”, a printed and true copy of which is hereto attached and marked Exhibit “E” and made a part hereof, and then and there did deliver, and cause to be delivered, a quantity, to-wit, fifteen thousand of said printed leaflet or folder last above described, to the Grand Rapids Local-socalled, of the Socialist Party.

6. That on or about to-wit, the 27th day and 28th day of May respectively, A. D. 1917, at said City of Grand Rapids, in said division of said district, and within the jurisdiction of this court, the said defendant, Charles J. Callaghan, then and there did distribute, and cause to be distributed a quantity to-wit, one or more, of a certain printed leaflet, entitled, to-wit, “The Price we Pay”, purporting to by Irwin St. John Tucker, and bearing the imprint to-wit, “Subscribe to the American Socalist", etc., a printed and true copy of which last named leaflt, to-wit, “The Price we Pay”, is hereto attached, and marked Exhibit “C” and made a part hereof.

7. That on or about towit, the 20th day of May, A. D. 1917, and each day thereafter to and including, to-wit, the 1st day of June, A. D. 1917, at said City of Grand Rapids, in said division of said district and within the jurisdiction of this court, the said defendant, Glenn G. Fleser did have and keep and procure to be had and kept for distribution at the headquarters or meeting place of, to-wit : said Grand Rapids Local, so-called, of said Socialist Party, towit, at 340 Bridge Street, in said City of Grand Rapids, a quantity to-wit,

five hundred of said leaflet first above described known as leaflet No. 5, 163 and entitled and true copy of which is hereto attached and marked "Ex

hibit A” and made a part thereof. 8. That on or about to-wit the 20th day of May, A. D. 1917, and each day thereafter to and including to-wit, the first day of June 1917, at said City of Grand Rapids in said division of said leaflet and within the jurisdiction of this court the said defendant, Glenn H. Panghorn, then and there did have and keep and procure to be had and kept for distribution at the headquarters or meeting place of to-wit, said Grand Rapids so-called of Said Socialist Party to-wit at 340 Bridge Street of said City of Grand Rapids a quantity, to-wit five hundred of said leaflets first above described known at leaflet No. 5 and entitled “Proclamation and War Program" a printed and true copy of which is hereto attached and marked “Exhibit A” and made a part thereof.

9. That on or about to-wit the 26th day of May, A. D. 1917, and each day thereafter to and including to-wit the 1st day of June, A. D. 1917, at to-wit said City of Grand Rapids in said division of said district and within the jurisdiction of this court the said defendants, Glenn G. Fleser, Benjamin A. Faulkner, Glenn H. Pangborn, and Benjamin Blumenberg or some of them then and there did have and keep and cause and procure to be had and kept for distributoin at the headquarters or meeting place of to-wit the Grand Rapids Local so-called of the Socialist Party at to-wit 340 Bridge Street, in said City of Grand Rapids a quantity to-wit, 1000 of the said leaflets hereinbefore described, to-wit the price we pay a printed and true copy of which is hereto attached and marke:

nel moonte a part hereof. 10. That on or about to-wit the 10th day of May, A. D. 1917, and to-wit each day thereafter to and including the 1st day of June, A. D. 1917, at to-wit said City of Grand Rapids in said division of said district and within the jurisdiction of this court the said defendants Glenn G. Fleser, Benjamin A. Faulkner, Glenn A. Pangborn, and Benjamin Blumenberg, or some of them, then and there did have and keep, and procure to be had and kept, for distribution at the headquarters or meeting place of to-wit, said Grand Rapids Local so-called of said Socialist Party, to-wit at 340 Bridge Street in said City

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