Mr. Johnson: That is correct.

The Court: After the verdict, and upon the occasions of the imposition of the sentence?

The Court: Mr. Johnson, do you now desire to be sworn to give me your evidence as to this statement for the court to use on passing on the motion for a change of venue?

Mr. Johnson: No sir.

The Court: You are a member of this bar?

Mr. Johnson: I am.

The Court:

The motion for the order asked is denied.

Mr. Clyne: Does Mr. Johnson appear as one of the counsel?

Mr. Johnson: Yes; I am one of the counsel.

Mr. Clyne: If your Honor please, we have a stenographic report, if your Honor cares to put it into the record, of what was said on that particular occasion, and we have the reporter here who reported and transcribed it.

The Court: Your may file it; not that it is of any interest

Mr. Johnson: Your Honor, I want to make a statement—

The Court: Anything you desire to say about the facts will have to be made under oath.

255

Mr. Johnson: I want to make my objection

The Court: Just a moment. This court, in dealing with a situation of this kind will have to, as it must be obvious, will have to adopt such rules and procedure as will tend to discourage the use of the change of venue processes authorized by the statutes of the United States as a mere vehicle for the conveyances of slander and libel. Now, anything you want to say about this you will have to present here under oath, in view of your attitude, sir. Mr. Steadman: I want an objection and exception to the introduction in this case, I understand,-I have not seen it, but there was some purported report offered in evidence by the District Attorney and I want-I understand it was filed, and I want to object to it.

The Court: Object to it being filed?

Mr. Stedman. I object to it being introduced in evidence. understand that was introduced in evidence by simply filing it?

Now, do you

The Court: The only interest I could have in that, my understanding is, that that is probably not admissible; probably incompetent,-in other words, as I understand the general rule, it is at least seriously questionable whether a fact that is averred,—the thing averred as a fact is controverted————

The Court: I will let it go in on this theory: having read that petition, I think that the judge against whom that averment is made, if the averment is not in fact true, if the report upon which the averment was made is in fact untrue, it goes to his own court; the truth should be shown of record in connection with the falsity. Maybe I am powerless in that, I do not know, but this affiant swears that he has been told that I said that the hearts of all German-Americans were reeking with disloyalty. I will let it be filed.

Mr. Stedman: And we take an exception to that.

256 Be it further remembered that thereafter said motion for a change of venue coming on to be heard on said petition, and the court having heard the arguments of counsel and being fully advised in the premises, the court then and there overruled and denied said petition.

To which ruling of the court the said defendants by their respective counsel, then and there in open court, duly excepted.

Subsequently there was filed herein said stenographic report, same being in words and figures as follows, to wit:

HUGH P. LUTZ, being first duly sworn on oath, deposes and says, that he has been a stenographer and shorthand reporter for over twenty-five years; that for the past five years he has been connected with the United States Attorney's Office, at Chicago, Illinois, as Clerk to the United States Attorney and Assistant United States Attorney; that on Friday morning, November 1, 1918, he was present in the United States District Court, presided over by the Hon. Judge K. M. Landis, for the purpose of taking shorthand notes of the evidence, statements and proceedings in the case of the United States v. August Weissensel, D. C. No. 6390, that this case was called by the Clerk

of the Court, for disposition on verdict, that he took such shorthand notes, which said shorthand notes are a true and correct report of statements then and there made and of proceedings that then and there took place, and that che attached seven typewritten sheets contain a true and correct transcript of said shorthand notes.

And further affiant sayeth not.

HUGH P. LUTX

Subscribed and sworn to before me this 16th day of November, A. D. 1918. WILLIAM A. SMALL

258

Notary Public

IN THE DISTRICT COURT OF THE UNITED STATES OF AMERICA

Before the Hon. Judge K. M. Landis, Friday, November 1, 1918. Motion for new trial and in arrest of judgment heard and over-ruled, and exception. Sentenced to 10 years in the United States Penitentiary at Leavenworth, Kansas, and committed.

The Clerk: 6390 United States v. August Weissensel, for disposition on erdict.

Mr. Johnson: Motion for new trial in that case. At the time the verdict was entered, I talked to the defendant, and he told me at the time, the court advised him,-asked whether or not he wanted counsel; he thought he had to Day for it, therefore, he said that he did not make any request, and was surprised

The Court: Were you here when I first brought up the subject? He did lid not tell you the truth,-that is just in line with everything that has been old to you by this defendant. I ordered you into the case

Mr. Johnson: I never had an opportunity to talk to the defendant,—I simply want to complete my obligation to the court. I feel that there was some matter that came in before the jury that was irrelevant and prejudicial the defendant.

The Court: What was it?

Mr. Johnson: Afterwards brought out by the questions of counsel. Mr. Borrelli, after I had asked him question whether he had been arrested, Mr. Borrelli said; you were arrested for wife beating and for drunkenness, and not supporting your wife

The Court: You asked the man if he had ever been arrested before.

59

Mr. Johnson: Here is a man sixty some odd years of age, head of a family of six children, living with his family at the time, and he had ever been convicted of crime.

The Court: You didn't ask him if he had ever been convicted of any crime. Mr. Johnson: I asked him if he had ever been arrested, it turned out afterwards he had been convicted and sent to the House of Correction. He ells me for refusing to give her any money. That happened over a year ago. He was arrested and sent down two or three years ago. He gave the jury a ery bad impression.

The Court: I haven't the slightest doubt about it. You said; were you ever rrested?

Mr. Johnson: I know I did.

The question: Now, was the question of your adversary on cross examinaHon improper?

Mr. Johnson: He said; you were sent down there for wife beating, weren't ou? His answer was, No, and then he told why.

The Court: Just for holding her supplies away from her. That had nothing o do with this.

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Mr. Johnson: One of the jurymen called my attention to it, after the case had been disposed of. I know he was very instrumental in it, and I went into it, and furthermore counsel put his own son on the stand to testify, and he didn't ask him question, did your father ever argue anything against the United States, he asked him the question; isn't it a fact that your Father always took the side of Germany against the United States, calling for a conclusion.

The Court: I sat here when this thing happened, and that did not happen. Did a juror tell you that?

Mr. Johnson: Not as to that, he did as to the other matters.

The Court: Well, if a member of that jury told you that the jury would have acquitted this man, if it had not been for its coming out that this man had ill treated his wife, why that juror must have been cracked in his head. Now, I doubt whether any juror expressed even an individual jurors opinion, if he used any words to that effect.

260

Mr. Johnson: Furthermore Polish witnesses that took the stand, their motive was very apparent.

The Court: The jury saw whatever the motive was. They had the motive. They were trying to enlist soldiers to go over there to fight these people,— not strange that the Polish should do that in 1918, and this man comes in there and proceeds to shoot off his mouth,-naturally they didn't like it. The strange thing about it to me is, that he went out of the barber shop on his feet instead of on his head, and had the witness been able to carry out what they intended to do, but the man was in the barber chair and these people were taking turn, and they were saying something against the Kaiser and the Ger man people, and he took protest because it was against the German people. If they have said anything worse against him than I have said, I would like to know what it is.

Mr. Johnson: I am simply pointing out it was—

The Court: A man in this country now, in 1918, that has such a judicial mind that he can express affection for this thing called the Kaiser, and his darling people, he is a little bit too judicial minded for his safety in this country.

Mr. Johnson: He did not

The Court: This man did not? He fought his own son, in his own household, month after month, when he had another son in the United States Army. Mr. Johnson: Yes, and he advised him

The Court: Have you anything to say in support of your motion for a new trial?

Mr. Johnson: No.

The Court: Over-ruled, motion in arrest for the same reason and any other reason appearing on the record, over-ruled and exception. Anything further? Have you anything to say Weissensel before this case is disposed of? (A) This talk in the barber shop was more heated against the German people than anything else, I believe, and God in heaven made the angels first, and

(A) Made the angels first before they made Adam and Eve; they are doing things against each other, one nation against each other, and one nation against each other, what should not be, and innocent man for just talking a few words.

The Court: God has been charged with a heap of things in the last few years

(A) I believe in God in this thing, I had no bad mind, I had nothing against the United States, I always was a good citizen, I took my papers out in time, 1894.

The Court: What do you mean by being a good citizen?

(A) Always did my duty.

The Court: Do you call it being a good citizen when your country is at war. to stand up and advocate the cause of the country with which your country is at war, in the presence of your own son, do you call that being a good citi. zen? Do you call having an argument with your own son being a good citizen?

(A) It was when reading paper, he read one paper and I read one paper. that is all, making big thing out of a little thing.

The Court: You were spending all the energy you had to spend against the fellows from your neighborhood that were over there fighting for you That is what you were doing.

(A) I was glad to see him in uniform. I says, go ahead and obey your officer, and be good, do what your mother told you when you were young, what you learned from Sisters and Priest, and never disobey your officer and I will be proud of you. I bid him good by at Union Station when I saw regiment, he belonged to the 7th Regiment since he was 18 years old. Now he is 27, and I would like to see him back again.

The Court: I haven't the slightest doubt you would like to see him back,I can understand that.

262

(A) And I have another two sons, they be private now too, they over 18 and the other is near 20.

The Court: The case of this man is a case charging violation of the Espionage Act. The charges in the indictment, which is in three counts, are that at various times and places the defendant used this language during this last summer, in the city of Chicago: You will see what Germany will do to the United States; they have got the money; they have got the men. On another occasion: Stop that talk, because I am a German; the Kaiser will soon be in New York and you will see what he will do to the United States. And on another occasion: The Germans will go right through the United States, in which connection the charge is that this defendant used other language to illustrate how the Germans will go through, he used a well known simile a part of which simile has to do with the celebrated tin horn,-how Germany would go through the United States.

(A) I did not say that.

The Court: I say, you deny it.

(A) Your honor, I never said that.

Mr. Johnson: The man testified that he had not seen the defendant for two weeks, that he had worked with him continuously for two weeks, that during all that time they talked together, and he never heard the defendant say a thing about the war, that he was discharged, and the fact was he was discharged

The Court: All of this is small stuff compared to the admitted stuff that finally came out on rebuttal,-that in his own home he was preaching this stuff, day after day, to his own son, with another son in the army. This is petty compared with what came out from' that witness. I do not have any grave doubt that being matter of-in trial of the case to bring it out; that would have been proper on the main case on the proposition as going to the question of intent. Now this is the kind of thing that has been going on here for months. This man is the type of man that has been more efficient, to 263 use the term that his native countrymen love,-efficeint in his operations, than any other class of offenders we have got. It is just this type of man that has branded almost the whole German-American populatlon. One German-American like this fellow, going about talking this stuff, does more damage to his people, and by his people I mean, born in Germany and after they come here, than thousands of these people can overcome by being good and loyal citizens over here. That is his real offense, it is a

case of a man who came here 40 years ago and more probably kicked out of Germany, or crawled out, or dodged—

The Court: Did you want to serve in the army over there? Well, ducked out.

(A) I left the old country, I have my papers, all passes

The Court: Now this type of man came here, then the time came when this fight came on. This fellow wouldn't even stay there and go through with the army, he didn't love it enough to do that, but he had such an affection for it that he ducked away and got across the sea to this country solely to miss that thing, that was the depth of his affection at a time when affection for that thing over there meant something, he came over here, lived here all these years, then the time came when that thing was fighting for its life, and when we were fighting for our lives, and the only expression that this man had in his heart respecting that controversy was of affection for that thing back there. I say he is an ideal illustration of the occasional American of German birth whose conduct has done so much to damn the whole ten million in America. Now I am telling him and you too when I say that; he had a son in the army, a volunteer in the army for the United States; he had another son in his own home coming of age to be a volunteer, and under those conditions this man, day after day, and day after day, went to the mat with that boy, advocating the cause of Germany to that boy.

The Court: Give me the statute: Good citizen,—he would have been a better citizn if he had been burglarious all the forty years in America, if he had steed

up now, because I know personally of some burglars, I have a personal knowledge of a safe blower, a man I have known for 9 years personally. He is a good soldier, he has done fine. In time of peace he was that kind of a man. I 264 know that man. He is a friend of mine. As between that safe blower by profession, now a soldier in France, and a man like this man who never blew a safe or picked a pocket, but who at this time has done what this man has done, I vote for the safe blower. He is the better citizen of the two. So far as his argument about the newspapers is concerned, it shows a heart reeking with disloyalty. He takes issue with certain statements made in the newspapers. Under this espinoage act,-what is the age of this man?

A 53, 21st of June.

On account of that son that is in the army, I am going to give him a credit of 50%,-that son is in the army, that he did not support; that son that is in the army, to whose burden this father added consciously and deliberately, in consideration of that son, this will be half of what it would be if it were not for that son in the army. 10 years at Leavenworth. Exception to the judgment prayed, allowed 60 days for bill of exceptions. The Court: Call your next.

265 And be it remembered that thereafter, to wit, on Monday, December 9th, A. D. 1918, the above entitled cause came on for trial before His Honor. Kenesaw M. Landis, one of the Judges of said Court, sitting on the criminal side thereof, and a jury.

266 And be it remembered that thereafter, to-wit: On the 19th day of November, 1918, said defendants moved the court and requested an order requiring the United States to file a bill of particulars, said request being in words and figures as follows, to-wit:

And now come Victor L. Berger, Adolph Germer, J. Louis Engdahl, Irwin St. John Tucker and William F. Kruse, by Seymour Stedman, their attorney, and move the court for an order requiring the United tSates to file a bill of particulars as to the following matters alleged in said indictment, to-wit:

1. Name the place; state the time wherein oral statements were made by the defendants respectively, which it is contended by the Government shows a conspiracy to violate Section 3 of the Espionage Law.

2. Name the time, place and state wherein the defendants respectively printed and published any statements which it is contended show the state of mind, the intent, or which it is contended show a conspiracy to violate said Section 3 of the Espionage Law.

3. State the date, time and place when “The Realities of War" were printed, published and circulated.

4. State what cartoons and illustrations are relied upon by the Government and when and where the same were published and advertised.

45. State when and where the defendants, or either of them, solicited. requested or urged any persons to disobey any of the provisions of Section 3 of said Espionage Law.

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6. State when and where any speeches or statements were made by any of the defendants relied upon by the prosecution to show intent. state of mind, or as evidence of the alleged conspiracy.

7. State when and where, the character and the nature of the facts wherein and whereby the defendants, or either of them, met or associated together, and the character, if any, association, and the time and place wherein any agree ment was formed or entered into by any two or more of the defendants.