9. The Court erred in refusing to direct the verhict of "not guilty" for the defendants at the close of the Government's evidence. 10. The Court erred in permitting the Attorney for the prosecution to ap peal to the political passions and prejudices of the jurors in their arguments. 11. The Court improperly charged and instructed the jury to the defendants' prejudice. 12. The Court improperly refused, to the defendants' prejudice, to give correct instructions requested and tendered by the defendants. 13. The Court erred in refusing to set aside the verdict upon it being dis closed that there were irregularities and communications prejudicial to the defendants by and between the jurors and the deputy marshal or marshals during the time that they were acting as jurors in this cause. 14. The Court erred in refusing to grant a new trial upon the newly discovered evidence submitted to the court. 15. Because of which said errors in the record herein, no lawful judgment can be rendered by the court upon the record in this cause. 16. Misconduct of counsel was prejudicial to the defendants. SEYMOUR STEDMAN Endorsed: Criminal Case No. 6062. United States of America vs. Victor L. Berger, et al, Motion for New Trial. Filed Feb. 3, 1919 at ---- o'clock M T. C. MacMillan, Clerk. 226 And afterwards, to wit, on the 3rd day of February, A. D. 1919, the following order was had and entered of record in said cause, before the Honorable Kenesaw M. Landis, Judge, to wit: This cause coming on to be heard on the motion of the defendants for a new trial herein, come the parties by their attorneys and the hearing proceeds in part, and the further hearing of said motion is continued until tomorrow morning at ten o'clock. 227 And afterwards, to wit, on the 4th day of February, A. D. 1919, the following order was had and entered of record in said cause, before the Honorable Kenesaw M. Landis, Judge, to wit: This cause coming on to be further heard on the motion of the defendants for a new trial herein, come again the parties by their attorneys, and the hear ing proceeds to conclusion, whereupon it is ordered by the court that this cause be continued until February 11, 1919, at ten thirty a. m. for disposition. 228 And afterwards, to wit, on the 11th day of February, A. D. 1919, the following order was had and entered of record in said cause before the Honorable Kenesaw M. Landis, Judge, to wit: This cause coming on to be further heard on the motion of the defendant for a new trial herein, come again the parties by their attorneys, and the hearing proceeds to conclusion, whereupon it is ordered by the court that this cause be continued until February 20th, 1919, at ten-thirty A. M. for disposition. 229 And afterwards, to wit, on the 20th day of February, A. D. 1919, the following order was had and entered of record in said cause, before the Honorable Kenesaw M. Landis, Judge, to wit: This being the day and hour to which the motion of the defendants for a new trial herein was continued for disposition, come the parties by their attorneys and the court having heard the arguments of counsel and being fully advised in the premises, overrules and denies said motion, to which order of the court the defendants by their attorneys duly except, and enter their motion in arrest of judgment, and this cause coming on to be heard on said motion in arrest of judgment, the court having heard the arguments of counsel and being fully advised in the premises, overrules said motion in arrest of judgment to which order of the court the said defendants by their attorneys duly except. 231 And afterwards, to wit, on the 20th day of February, A. D. 1919, the following order was had and entered of record in said cause, before the Honorable Kenesaw M. Landis, Judge, to wit: Comes the United States by United States Attorney, come also the defendants Victor L. Berger, Adolph Germer, Louis Engdahl, William F. Kruse and Irwin St. John Tucker, in their own proper persons to have the sentence and judgment of the court pronounced upon them, they having heretofore, to wit, on the 8th day of January, A. D. 1919. one of the days of this term of this court, been adjudged guilty in due form of law as charged in the indictment filed herein against them, and the defendants being asked by the Court if they have anything to say why the sentence and judgment of the court should not now be pronounced upon them and showing no good and sufficient reasons why sentence and judgment should not be pronounced, it is therefore considered and ordered by the court and is the sentence and judgment of the court upon the verdict of guilty so rendered by the jury as aforesaid that the defendants Victor L. Berger, Adolph Germer, J. Louis Engdahl, William F. Kruse and Irwin St. John Tucker, each be confined and imprisoned in the United States Penitentiary at Leavenworth, Kansas, for and during a period of twenty years. It is further ordered that the sentence in this cause begin to run at noon today, February 20, A. D. 1919. 232 And afterwards, to wit, on the 25th day of March, A. D. 1919, the following order was had and entered of record in said cause, before the Honorable Kenesaw M. Landis, Judge, to wit: On motion of the defendants herein by their attorneys and upon stipulation of the parties this day filed herein, it is ordered by the court that the time of the defendants within which to file their bill of exceptions be and hereby is enlarged twenty days. 233 And afterwards, to wit, on the 18th day of April, A. D. 1919, the following order was had and entered of record in said cause, before the Honorable Kenesaw M. Landis, Judge, to wit: On motion and upon stipulation of the parties this day filed herein, it is ordered by the court that the defendants have twenty days additional time within which to file their bill of exceptions. 234 And afterwards, to wit, on the 23rd day of May, A. D. 1919, the following order was had and entered of record in said cause, before the Honorable Kenesaw M. Landis, to wit: Come the parties by their attorneys and on motion and upon good cause to the court shown it is ordered by the Court that said defendants be and they hereby are given fifteen days additional time within which to file their bill of exceptions herein. 235 And afterwards, to wit, on the 23rd day of May, A. D. 1919, the following order was had and entered of record in said cause, before the Honorable Kenesaw M. Landis, Judge, to wit: This cause coming on to be heard upon motion of the defendants for the approval of their bill of exceptions, it is ordered by the court that said motion be set for hearing on May 26, 1919, at two o'clock P. M. 236 And afterwards, to wit, on the 26th day of May, A. D. 1919, the following order was had and entered of record in said cause, before the Honorable Kenesaw M. Landis, Judge, to wit: Come the parties by their attorneys, and on motion of said defendants and for good cause to the court shown it is ordered that said defendants have until June 25, 1919, at ten-thirty o'clock A. M. to file their bill of exceptions. 237 And afterwards, to wit, on the 15th day of May, A. D. 1919, the following order was had and entered of record in said cause, before the Honorable Kenesaw M. Landis, Judge, to wit: Come the parties by their attorneys and on motion of said defendants by their attorneys, the Court being fully advised in the premises, it is Ordered that said defendants have until May 29, 1919, at ten-thirty o'clock A. M. to file their bills of exceptions herein. Be is remembered than on, to wit, the_‒‒‒‒‒‒‒day of A. D. 1918, before the Hon. Evan Evans, Judge of of said Court, the said defendants, Victor L. Berger, Adolph Germer, J. Louis Engdahl, Irwin St. John Tucker and William F. Kruse, each in their own proper person and by their respective counsel then and there presented, filed and read in open court their certain demurrer to the indictment in said cause, also a plea by Adolph Germer of former acquittal which are permitted to be filed with prejudice to each other by the order of filing which demurrer was in words and figures as follows, to-wit: Now come the defendants, Victor L. Berger, Adolph Germer, J. Louis Engdahl, William F. Kruse and Irwin St. John Tucker, jointly and severally, by Seymour Stedman, Charles H. Soelke, and Swan M. Johnson, their attorneys, their attorneys, and demur to the indictment in the above entitled cause and for the reason thereof say that: (1) The count in said indictment does not charge an offense punishable under the laws of the United States; (2) That it is insufficient in that it fails to particularize the acts and statements either orally or in writing the circumstances constituting a crime cognizable under the laws of the United States; (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 (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 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 and 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 refer ring to proposed files of papers, dodgers, leaflets, etc., and by reference 5 of dodgers cartoons, illustration, printed postcards, books, magazines, bulletins and billboard posters, wholly failed to set forth the context or contents of said printed matter, or a description of said alleged cartoons whereby or through which it might appear or by or through which it is charged by the Government that the defendants committeed the allaged 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 military 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 persons whom they should meet within said division and elsewhere in the United States, or who should apply to said defendants, or who should attend public meetings in said division and district where said alleged speeches were to be delivered. (11) That it is insfficient in that it omits to state by language, descrip6 tion of circumstances, acts or facts, by throught or how the defendants proposed or conspired to advise or solicit, or willfully to cause insubordination, or willfully to cause disloyalty, or willfully to cause refusal of duty in the military and naval forces, or willfully 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: (1) willfully to cause insubordination; (2) disloyalty; (3) refusal of military duty in the military and naval forces of the United States; (4) 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 acts upon which said count purports to be based in that it fails to set forth statements made in writing or orally, acts or circumstances from which it appears that said defendants by misrepresentation, subtlety or 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 agreed to misrepresent facts. 7 (15) That it is insufficient in that it fails to allege any overt acts performed or shown to be by proper allegations the result and outgrowth of said alleged conspiracy and perpetrated with the object of carrying said conspiracy into effect. (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 constitue as presented in said indictment, an integral part of the count charging conspiracy in 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 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 and 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 1 of the amendment to the Constitution of the United States, which provides: 8 66 Congress shall make no laws 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 peaceably 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 insufficient in law to compel the said defendants to answer thereto as herein specifically and generally averred, and this the defendants are respectivly ready to verify. Wherefore said defendants judgment that they may be dismissed and discharged of the said indictment. 9 VICTOR L. BERGER WILLIAM F. KRUSE IRWIN ST. JOHN TUCKER. By SEYMOUR STEDMAN, CHARLES H. Which demurrer after argument of counsel for each of said defendants. respectively, and due deliberation of the court was then and there overruled and denied by the court. To which action of the court in overruling and denying said demurrer to said indictment herein, said defendants, Victor L. Berger, Adolph Germer, Irwin St. John Tucker, William F. Kruse and J. Louis Engdahl each day of their respective counsel then and there in open court duly excepted. And be it further remembered that thereafter on, to-wit, the 21st day of October, 1918, by leave of court in said cause, the said defendant Adolph Germer in his own proper person and by Stedman & Soelke and Swan M. Johnson, his attorneys, entered his certain plea of former acquittal in said cause, in words and figures as follows, to-wit: |