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war against the Imperial German government is not a law, within the purview of section 6 of the Criminal Code; and, second, that both counts are bad, because lacking in specific and definite allegations showing in what manner the offenses were to be committed.
Article 1, § 7, of the Constitution, prescribes the requisites to be observed by which a bill introduced in either house of Congress shall become a law. It must pass both houses and be presented to the President. If he approves it, it becomes a law. If he returns it with his veto, it must be to the house in which it originated. The section then proceeds as follows:
"If after such reconsideration two-thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of that house, it shall become a law. But in all such cases the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each house respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.
"Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment), shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill."
While not passing upon the question directly, the Supreme Court has considered and treated joint resolutions as having the effect of law. For instance, the court, in considering a joint resolution suspending the operation of an act of Congress, says, in United States ex rel. Levey v. Stockslager, 129 U. S. 470, 475, 9 Sup. Ct. 382, 384 (32 L. Ed. 785):
"It [the joint resolution] had all the characteristics and effects of the act of March 2, 1867 [the act which the resolution suspended], which became a law by the approval of the President. Until Congress should further order, the operation of the act of March 2, 1867, was by the joint resolution effectually suspended."
So in Fourteen Diamond Rings v. United States, 183 U. S. 176, 184, 22 Sup. Ct. 59, 62 (46 L. Ed. 138), Mr. Justice Brown, in a concurring opinion with the Chief Justice who rendered the opinion of the court, speaking of the function of a joint resolution, says:
"While a joint resolution, when approved by the President, or, being disapproved, is passed by two-thirds of each house, has the effect of a law (Const. art. 1, § 7), no such effect can be given to a resolution of either house acting independently of the other."
The eminent Justice cites with approval 6 Op. Atty. Gen. 680, wherein Attorney General Cushing holds that:
While "joint resolutions of Congress are not distinguishable from bills, and * have all the effect of law, * * separate resolutions of either house of Congress, except in matters appertaining to their own parliamentary rights, have no legal effect to constrain the action of the President or heads of departments."
The purpose of the resolution in question was weighty; it was designed to proclaim that a state of war existed between this government and Germany. It was designed to have, and by the intendment of Congress without question did have, the same effect and potency as if war had been declared by a regular act of Congress; otherwise, that body would, we may reasonably assume, have made the declaration by a regularly adopted act. We think that the resolution having the effect of law must be considered a law, within the meaning of section 6 of the Criminal Code.
[3, 4] Referring to the objection that the indictment fails to state definitely in what manner the offenses were to be committed, it is our opinion that the indictment itself, in both counts, completely answers it. We need not here repeat the language. It will be sufficient to call attention to the allegations of the purpose and intention of the alleged conspirators, which were to oppose by force the authority of the United States, to prevent, hinder, and delay the execution of the joint resolution of Congress declaring war, and to prevent by force the proper organization of armed military and naval forces of the United States, etc. This as to the first count. The second is equally explicit. The word "force" has a well-defined meaning, and it was not essential to the protection of the defendants, in their right to be so informed of what they were accused of doing as to enable them to concert their defense, that the pleader go further and state the particular manner in which the force was designed to be applied.
The true test of an indictment, says the Supreme Court, is, "not whether it might possibly have been made more certain, but whether it contains every element of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction." Cochran and Sayre v. United States, 157 U. S. 286, 290, 15 Sup. Ct. 628, 630 (39 L. Ed. 704). The principle has been applied by this court in Sheridan v. United States, 236 Fed. 305, 310, 149 C. C. A. 437.
The rule is especially applicable at the stage of the proceedings in which the question of the sufficiency of the indictment was raised here for the first time. Applying the rule, it is clear that the present indictment reasonably conforms to the requirement of the law. It serves to warn the defendants of what they are called upon to meet at the trial, and puts them into adequate possession of the facts charged to enable them properly to concert their defense. The indictment is therefore sufficient.
[5, 6] The next question presented for consideration is whether the trial court committed error in refusing to grant defendants' motion for a directed verdict, on the ground that the testimony does not show the commission of the offense charged. The testimony is all in the record, and it is for the court to say whether it is sufficient to carry the case to the jury for their determination.
In the trial court's charge to the jury, the two counts of the indictment were consolidated and treated as one offense. To this manner of
treating the case there seems to have been no objection, by either the government or the defendants. Proceeding upon this theory, the particular charge against defendants is that they conspired to oppose by force, and to prevent, hinder, and delay, the execution of the joint resolution of Congress of April 6, 1917, declaring that a state of war existed between the United States and the Imperial German government, authorizing the President to employ the entire naval and military forces of the United States and the resources of the government, and pledging the resources of the country for bringing the conflict to a successful termination; also the National Defense Act of June 3, 1916, section 57 of which provides that:
"The militia of the United States shall consist of all able-bodied male citizens of the United States and all other able-bodied males who have or who shall have declared their intention to become citizens of the United States, who shall be more than eighteen years of age, and, except as hereinafter provided, not more than forty-five years of age, and said militia shall be divided into three classes, the National Guard, the naval militia, and the unorganized militia." Comp. St. § 3041.
And section 79:
"If for any reason there shall not be enough voluntary enlistments to keep the reserve battalions at the prescribed strength, a sufficient number of unorganized militia shall be drafted into the service of the United States to maintain each of such battalions at the proper strength." Comp. St. § 3044q.
And also the act of January 21, 1903, as amended by the act of May 27, 1908, which authorizes the President, whenever the United States is in danger of being invaded by a foreign nation, to call forth the state militia to repel such invasion.
Keeping this statement in mind as a premise, we will give attention to the evidence. Let us emphasize, before proceeding, that force is an essential element of the offense, and likewise in the charge, and that mere solicitation or entreaty, without a purpose of applying or using force to accomplish the ends sought to be attained, is without the intendment of section 6 of the Penal Code, under which the indictment is drawn.
In the latter part of April and early in May, 1917, meetings were assembled in Seattle, Wash., under the auspices of an association of persons known as the "No Conscription League." At these meetings there was prepared and adopted by the league a circular entitled "No scription, No Involuntary Servitude, No Slavery." Twenty thousand of these circulars were printed, and persons attending the meetings circulated them in certain parts of the city, going from house to house and leaving them as they passed along. The circular reads as follows:
"Neither Slavery, nor INVOLUNTARY SERVITUDE, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.'
"The above is a part of the organic Constitution of the United States. The President and Congress have no authority to set it aside. That can only be done by a majority vote of the Legislatures of three-fourths of the separate states. For the President and Congress to do it is to usurp the powers of autocrats and if unresisted means the abandonment of democracy and the destruction of the republic.
"We, signing this, are native-born citizens, within the age limit set for the first compulsory draft. They will make an army of us and send us to
compel you to enter the second draft, and some more of you to enter the third draft and so on until freedom is dead. Wake up! Stand by us now, for when we have become an army we will have ceased to think and we will shoot you if told to shoot you! Just so it is expected that we will shoot and kill our brothers in other lands and that we will die to restore the rapidly vanishing values to the investments of Wall Street bankers escaping service themselves-a plutocracy whose good fortunes we do not share, but for which we have suffered enough.
"Resist! Refuse! Don't yield the first step toward conscription. Better to be imprisoned than to renounce your freedom of conscience. Let the financiers do their own collecting. Seek out those who are subject to the first draft! Tell them that we are refusing to register or to be conscripted and to stand with us like men and say to the masters: "Thou shalt not Prussianize America!'
"We are less concerned with the autocracy that is abroad and remote than that which is immediate, imminent and at home. If we are to fight autocracy, the place to begin is where we first encounter it. If we are to break anybody's chains, we must first break our own, in the forging. If we must fight and die, it is better that we do it upon soil that is dear to us, against our masters, than for them where foreign shores will drink our blood. Better mutiny, defiance and death of brave men with the light of the morning upon our brows, than the ignominy of slaves and death with the mark of Cain, and our hands spattered with the blood of those we have no reason to hate.
"SEATTLE BRANCH NO CONSCRIPTION LEAGUE, P. O. Box 225. "Where is it written in the Constitution-that you may take the children from their parents-and compel them to fight the battles of any war in which the folly or the wickedness of the government may engage?"
The testimony tends to show that the defendant Wells was present at two or more of these meetings, and took part in discussions pertaining to the circular. He took the copy to the printer and had it printed, corrected the proof, and paid for the printing, part of it from his own funds, and part through collections made at one of the meetings. He also directed the delivery of the printed circulars at the hall where a later meeting was held, and himself distributed some of the circulars. Sadler was present at at least one of the meetings, that of May 11, 1917, and took part in the discussions along with Wells. The "No Conscription" circulars were on the table in the assembly room at the time, and a number of persons took them away for distribution, but that Sadler took any of them away with him does not seem to be confirmed. Morris Pass attended two or more of the meetings, and at one acted as secretary, collected part of the money to pay for printing the circulars, and turned what he collected and that which came into his hands for that purpose over to Wells. He also distributed some of the circulars. Joe Pass was present at one or two of the meetings, took part in the discussion respecting the circular, and tacitly assented to its distribution. We have not attempted a survey of all the testimony adduced at
The defendants contend that the purpose of the circular was to oppose the passage of the conscription act, then pending in Congress, peaceably and without the use of force in any way, and the testimony for defendants seems to support the view that the discussions at these meetings took that turn. If force was to be employed, the fact must be deduced from the wording of the circular and the activities of the
defendants in procuring its adoption and distribution among the people in Seattle. What was said in the discussions that took place pertaining to the nature and character of the document to be adopted has not been shown, except in a general way, and no other language of a seditious nature has been shown to have been uttered by the defendants, or any of them, unless the resolution that was introduced by Wells at the Labor Temple in Seattle, and adopted, demanding exemption from military service on the ground of conscientious scruples, can be so construed. We consider the inquiry, however, aside from the effect and purpose of this resolution.
Attention should be directed more particularly to the wording of the latter clauses of the circular beginning with "Resist! Refuse!" It will thus be seen that the language urging resistance to conscription is very strong, breathing defiance to the constituted authorities, and, considering along with it the energy displayed in procuring the adoption and wide distribution of the circular, there would seem to be scope for reasonable men to draw the inference that it was intended, by those who were instrumental in its preparation and distribution, that force should be employed, if requisite, against the carrying into effect of the declaration of war by Congress, in pursuance of which Congress was proceeding to put the Selective Draft Act upon the statute, and to oppose by force the authority of the President in putting into execution the law respecting the militia, as referred to in the indictment, and the laws themselves carrying such authorization. We think, therefore, the evidence was sufficient upon which to submit the cause to the jury. It was not necessary to show that force was actually employed, but only that there was a conspiracy entered into that contemplated the employment of force, as a means to the accomplishment of a common purpose to oppose the execution of a law of the United States, or the authority of the government to prosecute the war.
 Objection was interposed to the admission of a resolution that was introduced by Wells, on May 23, 1917, at a meeting of the Central Labor Council in the city of Seattle, wherein organized workers, among other things, demanded of the government exemption from military. service of all those who had conscientious objections to the war, as prejudicial. It had a tendency to show Wells' attitude of mind towards the Conscription Act, at least, and was admissible for that, if for no other purpose.
 Another objection was interposed to the admission of the testimony of one Fraser, to the effect that he found one of the circulars on the front porch of his home, within a block of the boundary line of the Ft. Lawton military reservation, and that he showed it to a Mrs. Knight, also as prejudicial to defendants. It was proper to show the extent to which the circulars had been distributed, and this evidence was pertinent to that purpose.
 While the defendant Wells was on the witness stand, he was asked:
"What steps were taken by the local branches, by yourself and other members, with reference to opposing the Conscription Act?"