(273 F.)

2. Conspiracy ~43 (5) -Allegations of overt acts in indictment may be considered as explanatory of charge.

While a charge of conspiracy cannot be aided by averments of acts done in furtherance of it, averments of overt acts in an indictment for conspiracy, not elements of the offense under the statute, may be looked to as explanatory of the charge.

3. Conspiracy ~43 (11) -Indictment for conspiracy by force to prevent execution of laws of United States held insufficient.

An indictment under Criminal Code § 6 (Comp. St. § 10170), for conspiracy by force to prevent, hinder, or delay the execution of laws of the United States, held insufficient to charge the offense defined by the statute.

4. Indictment and information

130-Counts in indictment for conspiracy

under different statutes held properly joined.

Counts charging conspiracies under Criminal Code, § 37 (Comp. St. § 10201), under Espionage Act June 15, 1917, tit. 1, § 4 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10212d), and under Lever Act Aug. 10, 1917, 89 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115i), being for the same class of offenses, held properly joined in one indictment, under Rev. St. 1024 (Comp. St. § 1690).

5. Indictment and information ~125 (51⁄2)-Count not duplicitous for charging conspiracy to commit different offenses.

A count in an indictment for conspiracy is not duplicitous because it charges the object of the conspiracy to have been to commit more than one offense against the United States.

6. Indictment and information

10—That improper evidence was presented

to grand jury not ground for setting aside.

An indictment cannot be set aside on the ground that evidence unlawfully obtained was used before the grand jury unless it affirmatively appears that there was no lawful evidence presented on which it could have been based.

7. Criminal law 395-Documents of association may be used as evidence against member.

The constitutional protection of a defendant from the use as evidence against him of papers or documents unlawfully seized from his person or possession does not apply to papers or documents of an association of which he is a member, used in the perpetration of criminal offenses with which he is charged, and which were not taken from his possession, but from that of the association.

8. Criminal law

1149-Ruling on demurrer not assignable as error.

It is the general rule that the action of a trial court in overruling a motion to quash or demurrer to an indictment is not assignable as error.

In Error to the District Court of the United States for the District of Kansas; John C. Pollock, Judge.

Criminal prosecution by the United States against C. W. Anderson and 25 others. Judgment of conviction, and defendants separately bring error. Reversed in part, and affirmed in part.

Otto Christensen, of Chicago, Ill., for plaintiffs in error.

S. B. Amidon, Sp. Asst. Atty. Gen., of Wichita, Kan., and L. S. Harvey, Asst. U. S. Atty., of Kansas City, Kan. (Fred Robertson, U. S. Atty., of Kansas City, Kan., on the brief), for the United States. Before SANBORN and CARLAND, Circuit Judges, and LEWIS, District Judge.

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

LEWIS, District Judge. The twenty-six plaintiffs in error were tried convicted and sentenced on four counts of an indictment charging them with criminal conspiracies. The proceedings at the trial are not in the record, and the only action of the trial court which we are asked to consider is its orders overruling a demurrer and motion to quash, which challenged the sufficiency of each count. The indictment covers thirty-two pages of the record; the motion to quash, with attached exhibits and affidavits in support, the answer thereto, traversing the facts set up, with exhibits attached and affidavits in support of the answer, cover forty pages of the record; and the demurrer twenty pages. The demurrer embodies every conceivable criticism, duplicity, repugnancy and surplusage as to each count, that the counts could not properly be joined in one bill, that none of them charges the commission of a crime in violation of the laws of the United States, that as to each count the court was without jurisdiction, that each count is too vague, indefinite and uncertain to advise the defendants of the offenses for which they are to be put on trial. It descends to particulars in criticism of words, phrases and sentences in each count, for instance, that it cannot be ascertained in what sense the word “unlawful" is used, whether unlawful under municipal, state, federal or international law. It embodies more than one hundred grounds of alleged insufficiency of each and all of the counts. The motion. to quash attacks the validity of the proceedings before the grand jury which returned the bill, and includes also some of the broader grounds of objection set up in the demurrer.

A full consideration of the first count will not only enable us to determine whether the court erred in sustaining it as good, but will also go far in solving the same inquiry as to the other three counts. We proceed, then, to set out the substance of the first charge. It is based on that part of Section 6 of the Criminal Code which reads: "If two or more persons conspire by force to prevent, hinder or delay the execution of any law of the United States" (Comp. St. § 10170) they shall be punished as in the section stated. It charges that the twenty-six plaintiffs in error entered into a conspiracy with twelve other named persons, and with divers others to the grand jurors unknown, "by force to prevent, hinder and delay, in violation of Section 6 of the Penal Code of the United States, the execution of certain laws of the United States, to wit." The laws of the United States, execution of which the conspiracy was formed to prevent, hinder and delay by force, are set out by appropriate references, and are these:

1. The Resolution of April 6, 1917. declaring a state of war between the United States and the Imperial German Government (40 Stat. 1). 2. The Proclamation and Regulations of the President of the same date, governing the conduct, treatment and disposition of alien enemies, made pursuant to Sections 4067, 4068, 4069, 4070, R. S. U. S. (40 Stat. Vol. 2, 1650).

3. Act of Congress May 18, 1917, entitled: "An Act to Authorize the President to increase temporarily the military establishment of the United States," the Proclamation of the President of May 18,

(273 F.)

1917, fixing time for registration under the Act, the registration regulations prescribed by the President, and the rules and regulations for local and district boards prescribed by the President June 30, 1917, under the Act (40 Stat. 76).

4. Act of Congress July 24, 1917, entitled: "An Act to authorize the President to increase temporarily the Signal Corps of the army," etc. (40 Stat. 243 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 1867f-18670]).

5. Act of Congress August 10, 1917, entitled, "An Act to provide further for the national security and defense," etc. (40 Stat. 276 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 3115e-3115v]).

6. And Sections 4, 37, 42, 43, 135 and 136 of the Criminal Code (35 Stat. 1088 [Comp. St. §§ 10168, 10201, 10206, 10207, 10305, 10306]).

Although Section 6 does not require an overt act as an element of the crime which it denounces, the first count sets forth twenty alleged overt acts committed by the defendants and their co-conspirators "in and for executing said unlawful and felonious conspiracy." These overt acts cover twenty-two pages of the printed record, and are followed by the usual formal conclusion that the grand jurors "do say that said defendants, and their said co-conspirators, during said period of time, at the place and in the manner and form aforesaid, unlawfully and feloniously have conspired by force to prevent, hinder and delay the execution of the laws of the United States," etc. It is charged that the conspiracy was formed and continued from April 6, 1917, to November 25, 1917, in Butler County, Kansas. Before summarizing the overt acts we direct attention to the opening charge, which covers three printed pages and precedes the charge proper by way of inducement or aggravation. It alleges that prior to April 6, 1917, and continuing thereafter, there existed in the United States, and within the jurisdiction of the court, an organization of persons under the name of Industrial Workers of the World, commonly called "I. W. W." and "O. B. U.," that a portion of said organization was also known as "Agricultural Workers Industrial Union Number 400," "Agricultural Workers Organization of the I. W. W. Number 400," "Oil Workers Industrial Union Number 450", and "O. W. I. U. Number 450," that there were several thousand persons in said organization distributed in various parts of the United States, including Kansas and Oklahoma, many of them being laborers in different branches of industry necessary to the existence and welfare of the people and of the government, among others the transportation, oil, fuel, natural gas. and farming industries, that defendants were members of said organization and were known as "militant members of the working class" and "rebels," holding various offices, employments and agencies therein, and that the special purpose of defendants within said organization was to prevent, hinder and delay the execution of the laws of the United States, that defendants were actively engaged in conducting the association and carrying out and propagating its principles by written, printed and verbal exhortations, and were and had been engaged in attempting to accomplish, and in part had accomplished, the

objects of the unlawful and felonious purposes of said Industrial Workers of the World. It is further alleged that said organization was for the assumed purpose of advancing the interests of laborers as a class; that they sought the complete ownership and control of all property and the means of producing and distributing property, through the abolition of all other classes of society; that they call all who are not members of their organization "capitalists," "the master class," "the ruling class," "exploiters of the workers," "bourgeois," and "parasites"; that their purpose was to abolish all other classes by the continual and persistent use and employment of unlawful, criminal and forcible means and methods, involving threats, assaults, injuries, intimidations, arson, murders, and injury to and destruction of property by the practice of "sabotage," "direct action," "working on the job," "wearing the wooden shoe," "working the scab-cat," and "slowing-down tactics," also forcible resistance to the execution of all laws of the United States, and finally forcible revolutionary overthrow of all existing governmental authority in the United States; that these means and methods were to be resorted to in local industrial and general strikes of laborers, and in disregard of the right of the United States to execute its laws, and with the especial and particular design of seizing the opportunity presented due to the necessity of the United States expeditiously and successfully carrying on its war with the Imperial German Government, well knowing that in so doing the necessary effect would be to hinder and delay, and in part prevent the execution of the laws of the United States, and thereby they proposed to limit the facilities for transporting, producing, manufacturing, storing and dealing in necessaries, especially fuel, oil, natural gas, food and farm products, to restrict the supply of such necessaries and to restrict their distribution, all of which were required and necessary for the successful prosecution of the war and the support and maintenance of the army and navy; that one of the purposes of said organization was to discourage, obstruct and prevent the prosecution of said war by the United States and the execution of its laws for so doing, by advising, counselling and procuring members of said organization available for duty in the military and naval forces to fail to register, to fail and refuse to enlist for military service, and by inciting other persons not members of the organization so to do, and this was to be accomplished by use of all of the methods aforesaid, and as a forcible means of preventing, hindering and delaying the execution of said laws of the United States, and to forcibly conceal and rescue members from said military and naval forces.

Referring now to the overt acts,-the first charges some of the conspirators, naming them, with causing to be printed in a newspaper called "Solidarity," of date September 1, 1917, at Chicago, what is entitled, "Preamble Industrial Workers of the World." The preamble is set out. It recites a conflict between the working class and the employing class, it urges the abolition of the wage system and that the working class take possession of the earth and the machinery of production, it advocates strikes to accomplish the end, and that the la

(273 F.)

boring class organize to overthrow capitalism, and it is then alleged that some of the conspirators circulated the paper containing the preamble in the district of Kansas.

The second overt act charges that one of the conspirators distributed and gave out this paper within the district.

The third charges that the defendants, from April 6 to November 20, 1917, distributed, circulated and read within the district a book by Emile Pouget, entitled "Sabotage," and then quotes a number of extracts from the book which advocate the temporary disabling, but not destruction, of machinery, denominating such action as "the chloroforming of the organism of production, the 'knockout drops,'" that a little sand or emery powder in the gear of machinery will render it palsied and useless.

The fourth overt act charges that the defendants, between April 6 and November 20, 1917, distributed, circulated and caused to be read within the district a book entitled "I. W. W. Songs to Fan the Flames of Discontent," which book contained the preamble set out in the first overt act, and it then sets forth the words of the songs, the first being a glorification of the red flag, the second advocates destruction or putting out of operation farm machinery, unless a demand for higher wages and shorter hours is conceded, the third is of like import, and the fourth portrays the horrors of war.

The fifth overt act charges the distribution during the time named, within the district, of a book or pamphlet entitled "Sabotage, its History, Philosophy and Function, Walter C. Smith," followed by many quoted passages of the character already noted.

The sixth charges the distribution and circulation in Butler County during the time stated of a newspaper, "Solidarity," of issue July 28, 1917, containing an article condemning the war and giving notice that any member of the organization who joined the military forces. would be expelled.

The seventh charges the publication of a song, the words of which are set out, and the sentiment of which is not to enlist for military or naval service, published in a newspaper, "Industrial Worker," of April 14, 1917, at Seattle, Washington, and circulated in Butler County within the time stated.

The thirteen remaining overt acts are either like those already mentioned or else correspondence between the conspirators in reference to the organization to which they belong and its activities, and the efforts being made to increase its membership in the Kansas and Oklahoma oil-producing territory. They need not be noticed in detail.

[1] With this general statement, but complete enough in detail for a correct determination of the issues raised by the motion and demurrer to the first count, we are brought to a consideration of the question as to whether that count charges a commission of the offense denounced by Section 6. The elements of that offense are definitely stated in Baldwin v. Franks, 120 U. S. 678, 7 Sup. Ct. 656, 32 L. Ed. 766; in which the part of Section 6 above quoted was under consideration, and it was said: