Victor L. Berger, Adolph Germer, J. Louis Engdahl, Defendants. Criminal Case 6260 The demurrer of the defendants to the indictment and the demurrer of the Government to the plea of former jeopardy interposed by the defendant, Germer, were both argued at the same time, and I propose to dispose of both pleas by this one memorandum. The demurrer to the indictment is overruled. I think no opinion is necessary. PLEA OF FORMER JEOPARDY. Defendant, Germer, was indicted in the District Court of the United States for the Western District of Michigan along with some ten other defendants and duly tried and acquitted of a charge of conspiracy, and former jeopardy is now by him pleaded as a bar to the present prosecution, also for conspiracy. Whether the former trial is a bar to the present prosecution depends upon whether the facts and the offenses charged are the same. The test by which we are to determine whether a former indictment is a bar to a present prosecution is well established. See Burton vs. U. S. 202 U. S. 378, Kepner vs. U. S. 195 U. S. 127, Grafton vs. U. S. 206 U. S. 348, U. S. vs. Mason 213 U. S. 120. Con Two Acts of Congress and the dates of their passage are significant. gress passed the so-called Espionage Act on the fifteenth day of June, 1917, and it is under this Act that the instant indictment is brought. The indictment 30 in the Michigan Court arose out of an Act of Congress approved May 18, 1917, entitled "An Act to authorize the President to increase temporarily the Military Establishment of the United States" and the Proclamation of the President following the passage of such Act. The Court knows, and the indictment in the Michigan Court asserts, that the President, in accordance with this Act, fixed the fifth day of June, 1917, between the hours of seven A. M. and nine P. M. as the time when certain designated persons in the United States should register. The indictment in the Michigan Court alleges that the defendants therein named and other persons, entered into a conspiracy on the eighteenth day of May, A. D. 1917, to aid, abet, induce and procure divers parties between the ages of twenty-one and thirty years inclusive to fail and refuse to present themselves for registration. It must be apparent at once that a conspiracy to prevent registration, which necessarily terminated on June 5th, 1917, states a different crime from a conspiracy to violate a law which was not passed until June 15th, 1917. There may be a great similarity in the means adopted by the defendants in the present case to the means adopted by the defendants in the Michigan case; there may be a great similarity in the names of the parties to the two conspiracies; in fact they may be the same parties. And it appears that the defendants in the present case are, like the defendants in the Michigan case, the leaders of a certain political party in the United States. The overt acts by which the conspiracy was carried out in the instant case are very similar to the overt acts which completed the alleged conspiracy in the Michigan case. However close may be the similarity, either in the overt acts or in the means or in the names of the parties, it is apparent that such similarity is not decisive of the question here presented. The crimes are distinct and separate. The 31 Espionage Act could not have been violated before it was enacted. The facts, upon which the conspiracy charged in the Michigan Court was based, could not therefore have been the basis for the alleged crime set forth in the instant indictment. Likewise, the conspiracy charged in the Michigan indictment must necessarily have come to an end on June fifth, the date of the registration, a date at least ten days before the conspiracy in the instant case could have been formed. For these reasons the plea of former jeopardy is bad, and the demurrer thereto should be sustained. 32 33 To which action of the Court in sustaining said demurrer to said plea as amended of former acquittal by said defendant Adolph Germer to the indictment in said cause, the said defendant Adolph Germer then and there in open Court by his counsel then and there duly excepted. And forasmuch as said proceedings and matters of exception do not appear of record in said cause this Bill of Exceptions is presented to the Court by the said defendants, Victor L. Berger, Adolph Germer, J. Louis Engdahl, Irwin St. John Tucker and William F. Kruse, each, respectively, with the prayer that the same may be signed and sealed by the Court and made a part of the record in said cause, which is done accordingly this 3rd day of April, A. D. 1919. And that the same is ordered filed nunc pro tunc as of the 25 day of Oct. 1918. EVAN A. EVANS (Seal) Judge. It is hereby stipulated and agreed by and between the parties to the above entitled causes and their respective attorneys that the foregoing original bill of exceptions may be incorporated into the transcript of the record in said cause in lieu of a copy of said original bill of exceptions. U. S. District Attorney. Attorneys for Defendants. Endorsed: Bill of Exceptions Filed July 3, 1919. T. C. MacMillan, Clerk. Be It Remembered That on to-wit, the 8th day of November, A. D. 1918, the said defendants, Victor L. Berger, Adolph Germer, William F. Kruse, Irwin St. John Tucker and J. Louis Engdahl, each in their own proper person and by their respective counsel, respectively, moved the court for a change of venue in said cause, and then and there presented, filed and read in support of said motion their certain petition in writing for a change of venue, in words and figures as follows, to-wit: To the Honorable Judges of the United States District Court of the Northern District of Illinois, Eastern Division: Your petitioners, Victor L. Berger, Adolph Germer, J. Louis Engdahl, Irwin St. John Tucker and William F. Kruse, jointly and respectively, respectfully represent that they are defendants in the above entitled cause wherein they are charged with the crime of conspiracy; that His Honor, Judge Kenesaw Mountain Landis, Judge of the United States District Court for said District is presiding over the trial of criminal cases in said court; that the above entitled cause was heretofore presided over by Judge Evan Evans a Judge of the United States Circuit before whom a demurrer in the above entitled cause was pre sented and argued and before whom a plea of former acquittal was filed 246 by the defendant, Adolph Germer: that said demurrer and plea were ruled upon adverse to these defendants on or about October 26, 1918. Your petitioners further represent that they presmued that the trial of said cause would probably be presided over by said Judge who heard said motion but that they have been informed within the last week that said cause was on the calendar of and to be presided over by said Judge Kenesaw Mountain Landis unless otherwise provided by the court in accordance with Section 21 of the Judicial Code of the United States. 247 Your petitioners further represent that they jointly and severally verily believe that His Honor Judge Kenesaw Mountain Landis has a personal bias and prejudice against certain of the defendants, to wit: Victor L. Berger, William F. Kruse and Adolph Germer, defendants in this cause, and impleaded with J. Louis Engdahl and Irwin St. John Tucker, defendants in this case. That the grounds for the petitioners beliefs are the following facts: That said Adolph Germer was born in Prussia, a state or province of Germany; that Victor L. Berger was born in Rehback, Austria; that William F. Kruse is of immediate German extraction; that said Judge Landis is prejudiced and biased against said defendants because of their nativity, and in support thereof the defendants allege, that, on information and belief, on or about the 1st day of November said Judge Landis said in substance: "If anybody has said anything worse about the Germans than I have I would like to know it so I can use it." And referring to a German who was charged with stating that "Germany had money and plenty of men and wait and see what she is going to do to the United States," Judge Landis said in substance: "One must have a very judicial mind, indeed, not to be prejudiced against the German Americans in this country. Their hearts are reeking with disloyalty. This defendant is the kind of a man that spreads this kind of propaganda and it has been spread until it has affected practically all the Germans in this country. This same kind of excuse of the defendant offering to protect the German people is the same kind of excuse offered by pacifists in this country, who are against the United States and have the interests of the enemy at heart by defending that thing they call the Kaiser and his darling people. You are the same kind of man that comes over to this country from Germany to get away from the Kaiser and war. You have become a citizen of this country and lived here as such, and now when this country is at war with Germany you seek to undermine the country which gave you protection. You are of the same mind that practically all the German-Americans are in this country, and you call yourselves German-Americans. Your hearts are 248 reeking with disloyalty. I know a safe blower, he is a friend of mine, who is making a good soldier in France He was a bank robber for nine years, that was his business in peace time, and now he is a good soldier, and as between him and this defendant, I prefer the safe blower." These defendants further aver that they have at no time defended the Kaiser, but on the contrary they have been opposed to an autocracy in Germany and every other country; that Victor L. Berger, defendant herein, editor of the Milwaukee Leader, a Socialist daily paper; Adolph Germer, national secretary of the Socialist party; William F. Kruse, editor of the Young Socialists Magazine, a Socialist publication; and J. Louis Engdahl disapproved the entrance of the United States into this war. Your petitioners further aver that the defendants Tucker and Engdahl were born in the United States and were not born in enemy countries, and are not immediate descendants of persons born in enemy countries, but verily believe because they are impleaded with Berger, Kruse and Germer that they as well as Berger, Germer and Kruse can not receive a fair and impartial trial, and that the prejudice of said Judge Landis against said Berger, Germer and Kruse would prejudice the defense of said defendants Tucker and Engdahl impleaded in this case. 249 Wherefore your petitioners pray that proper proceedings be had in accordance with either Section 20 or Section 23 of said Judicial Code : of the United States so that the senior Circuit Judge of the seventh circuit in which said Northern District of Illinois, Eastern Division, is located shall assign a district Judge to said circuit other than the said Kenesaw Mountain Landis to preside at the trial of the above entitled cause. Victor L. Berger, Adolph Germer, J. Louis Engdahl, Irwin St. John Tucker and William F. Kruse, being first severally and jointly sworn on oath say that they are respectively the persons whose names are subscribed to the foregoing petition for designation of a different judge for the trial of the above entitled cause because of the prejudice of the presiding judge; that they are each respectively familiar with the contents of said petition, and that the matters and things therein contained are true in substance and in fact, except such matters and things as are set forth on information and belief and as to such matters and things said affiants believe them to be true. VICTOR L. BERGER ADOLPH GERMER Subscribed and sworn to before me this 8th day of November A. D. 1918. IDA T. MAHNKE Notary Public. 251 I, Seymour Stedman, attorney for Victor L. Berger, Adolph Germer, J. Louis Engdahl, Irwin St. John Tucker and William F. Kruse, defendants in the above entitled cause, do hereby certify that I have prepared the foregoing petition for change of venue and said petition and application for change of venue is made in good faith. SEYMOUR STEDMAN Attorney for Defendants. Victor L. Berger, et al No. 6260. And be it remembered that thereafter, on the 16th day of November, in the year nineteen hundred and eighteen, said motion for a change of venue coming on to be heard on said petition, the following proceedings were had: The Court: (To defendants Berger, Germer, Engdahl, Tucker and Kruse) You have filed a petition here--at all events a petition has been filed here purporting to bear the signature of you five men, subscribed before a notary public on the 8th day of November, 1918: Do you know what I am talking about? To which question all of the defendants replied "Yes." The Court: Who informed you, Mr. Berger, that this Court, meaning this particular occupant of the bench, used this language: "One must have a very judicial mind indeed not to be prejudiced against the German Americans in this country; their hearts are reeking with disloyalty; this defendant is the kind of a man that spreads this kind of propaganda and it has been spread until it has affected practically all of the Germans in this country; the same kind of an excuse of the defendant offering to protect the German people is the same kind of an excuse offered by pacifists in this country who are against the United States and have the interest of the enemy at heart by defending that thing that they call the Kaiser and his darling people. You are the same kind of a man that comes over to this country to get away from the Kaiser and the war. You have become a citizen of this country and lived here as such, and now when this country is at war with Germany you seek to undermine the country which gave you protection. You are of the same kind that practically all of the German-Americans are in this country. You call yourselves "German-Americans"; your hearts are reeking with disloyalty." 253 Where did you get that? Mr. Stedman: I want to object to the examination of petitioners as witnesses on the trial of any issue raised on this petition. The Court: Is this objection raised at the request of the defendant? Mr. Stedman: I am representing these persons. The Court: Your objection is overruled. Mr. Stedman: Exception. Mr. Berger: Judge, I am to be guided by my attorney. The Court: I do not want you to go into anything that may be involved in the case-all I am asking is this: I assume that you are a man who is interested in the truth. Am I right in that assumption? Mr. Berger: Yes sir. The Court: Now, you heard my inquiry: Who told you that I said this? You heard my question. The Court: And you heard Mr. Stedman object to that question. Does he object to that question in your behalf, at your request? Mr. Berger: He is my attorney and I have no right to interfere with his way of conducting this case. The Court: Is that the answer of each of the defendants? (To which each of the defendants replied, "Yes.") The Court further inquired of the defendants if they understood that all his question asked for was the source of their authority for the assertion that he had used the language quoted in the petition, and the defendants stated that they so understood it, and that they availed themselves of the objection made by counsel. The Court then inquired of Mr. Cochem, Attorney representing Defendant Berger, whether he had made any effort to ascertain the accuracy of the statement alleged to have been made by the Court. Cochem replied that he had not. 254 The Court: Is there anything you want to say in support of this motion? The Court: I am asking you if the member of the bar, Mr. Johnson, now standing by your side, and who, you informed me the other day was your authority for these facts, does he swear that I made use of that language? Mr. Stedman: His affidavit is not there, but he does make that statement. The Court: Does he swear in this proceeding? The Court: Now further, let me inquire, that language, which this affidavit attibutes to me in the manner disclosed by the affidavit, as I understood you to say the other day, is claimed by Mr. Johnson, the gentleman I have referred to, to have been used by me in connection with the disposition of the case of the United States against Weissensel? |