7. WAR 4-ESI IONAGE ACT. A newspaper article, disclosing that the defendant, the publisher, as one of 288 residents of Porto Rico who had declined American citizenship, was opposing what he regarded as an unwarranted application of Selective Service Act (Comp. St. 1918, §§ 2019a. 2019b, 2044a-2044k) to them, held insufficient to show that defendant by its publication caused or attempted to cause insubordination, mutiny, disloyalty, and refusal of duty, or obstructed the enlistment or recruiting service of the United States, or that he intended so to do, under Espionage Act June 15, 1917, tit. 1, § 3 (Comp. St. 1918, § 10212c). 8. WAR 4-ESPIONAGE ACT-INDICTMENT-SUFFICIENCY. A newspaper article, complaining of Selective Service Act (Comp. St. 1918, §§ 2019a, 2019b, 2044a-2044k), or constructions thereof by the provost marshal of the United States, held not so apparently free from language adapted or calculated to create insubordination, etc., or to obstruct the enlistment or recruiting service with the intent, etc., that court could have sustained a demurrer to counts of an indictment setting it forth as a violation of Espionage Act June 15, 1917, tit. 1, § 3 (Comp. St. 1918, § 10212c). 9. CRIMINAL LAW 371(1) ESPIONAGE ACT-PUBLICATIONS-EVIDENCE In a prosecution under Espionage Act June 15, 1917, tit. 1, § 3 (Comp. St. 1918, § 10212c), where the intent of the defendant by publication to commit the offense of causing or attempting to cause insubordination, etc., was one of the issues submitted to the jury, publications of the defendant in earlier issues of his paper were admissible in evidence to show that defendant had no unlawful intent. 10. WAR 4- ESPIONAGE ACT-PUBLISHING ARTICLES TO CAUSE INSUBORDINATION AND OBSTRUCT ENLISTMENT-ELEMENTS. In a prosecution under Espionage Act June 15, 1917, tit. 1, § 3 (Comp. St. 1918, § 10212c), it was not only necessary to prove beyond a reasonable doubt that the defendant willfully published newspaper articles with the intent to cause insubordination, etc., or to obstruct the enlistment and recruiting service, but also that this intent had been carried into effect by language adapted to produce these results. 11. WAR 4-ESPIONAGE ACT. Espionage Act June 15, 1917, tit. 1, § 3 (Comp. St. 1918, § 10212c), in referring to the influencing and disloyalty, etc., in the military forces of the United States, should not be construed so broadly as to include the influencing of all the able-bodied men in Porto Rico, especially those who had renounced American citizenship, whether they were within the class who were obliged to register or not. 12. WAR 4-ESPIONAGE ACT-SUFFICIENCY OF EVIDENCE. In a prosecution under Espionage Act June 15, 1917, tit. 1, § 3 (Comp. St. 1918, § 10212c), evidence held insufficient to sustain a finding that defendant published newspaper articles willfully, with the intent to create insubordination, mutiny, etc., or obstruct the recruiting or enlistment service of the United States. Appeal from the District Court of the United States for the District of Porto Rico; Peter J. Hamilton, Judge. Vincente Balbas Capo was convicted of a violation of the Espionage Act, and he brings error. Reversed and remanded. Boyd B. Jones, of Boston, Mass. (Henry G. Molina, of San Juan, Porto Rico, on the brief), for plaintiff in error. Thomas J. Boynton, U. S. Atty., of Boston, Mass. (Alonzo H. Garcelon, Sp. Asst. U. S. Atty., of Boston, Mass., on the brief), for defendants in error. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (257 F.) Before BINGHAM and JOHNSON, Circuit Judges, and ALDRICH, District Judge. JOHNSON, Circuit Judge. This is a writ of error to review a final judgment of the district court of Porto Rico, imposing a fine of $1,000 and imprisonment for the term of two years upon the defendant below, upon each of four counts in an indictment in which the defendant was charged with violation of title 1, § 3, Act of June 15, 1917, c. 30, 40 Stat. 219 (Comp. St. 1918, § 10212c), known as the Espionage Act. There were six counts in the indictment. In the first and fourth counts the defendant below was charged with having committed the offense created by the first clause in the Espionage Act, viz.: The willfully making or conveying false statements with intent to interfere with the operation and success of the military and naval forces of the United States, to the injury of the United States. The fourth count was quashed upon motion of the defendant, and the jury returned a verdict of not guilty upon the first. In the remaining four counts he was charged with committing the second and third offenses created by the following clauses in the act: "And whoever, when the United States is at war, shall willfully cause, or attempt to cause, insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct the recruiting or enlistment service of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both." * In the second count he was charged with having committed the offense of causing and attempting to cause insubordination, etc., by "unlawfully, willfully, knowingly and feloniously publishing" in a certain paper or periodical, known as the "Heraldo de las Antillas," in the city of San Juan, Porto Rico, on or about the 27th day of October, 1917, certain false statements in the Spanish language, the English translation of which is as follows: "Recruiting in Porto Rico. "According to recent notices, the quota of recruits of Porto Rico which had been fixed at 12,000 men has been increased to 17,000, of which the first ones will be white and the rest colored. "It is said that the recruiting will begin within the first ten days of November next. "We understand that Porto Rico contributes to the National Army proportionally a larger number of soldiers than any other state in the Union, and larger than any other territory, as, for instance, Hawaii, which does not contribute any. "What do the politicians say to that, who attribute to themselves the monopoly of the defense of the people's interests? "They say nothing. "They are busy defending some positions that they have paid for." It was alleged in said count that "The object and intent of the said words made, published and conveyed as aforesaid was to cause insubordination, disloyalty, mutiny and refusal of duty in the military and naval forces of the United States, peace and dignity of the United States." against the In the third count it was charged that he did— "willfully, unlawfully, knowingly, and feloniously obstruct the recruiting and enlistment service of the United States, to the injury of said service and to the injury of the United States," by the same publication; and that "the object and intent of said words * ** was to obstruct the registration and * enlistment in the service of the United States." In the fifth count he was charged with having committed the offense with which he was charged in the second count, by the publication in the same paper, on or about the 10th day of November, 1917, of an editorial entitled "The Topic of the Day." In the sixth count he was charged with having committed the offense with which he was charged in the third count, by publishing the same editorial. This was printed in the English language, and is set out in full in the indictment. It is too long to be quoted at length, and we will therefore quote only the material parts and state the substance of the rest. It began with the following quotation from another newspaper published in Porto Rico: "The Topic of the Day. "The Prevost Marshall of the United States has decided that the Porto Ricans who have declined American citizenship are obliged to serve in the Army." La Democracia. The writer then discussed this reported decision of the provost marshal: "Just as it sounds, the above statement is exactly this: "The Prevost Marshall has decided.' So that had the Prevost Marshall decided, contrarily, those who have not sworn American citizenship would not have been called to the 'colors' or what has the same effect but in different words-that what one man decided is to be law for 288 men. * * * "With due deference to La Democracia, the Prevost Marshall has not the power to decide which affects man's conscience. * "The law reads that all citizens of the United States are obliged to active service, to take up arms; but it does not refer to those who are not American citizens. And should that law enact such a step, it would be nothing less than a law without foundation, because may La Democracia know, that Porto Ricans those who have not sworn allegiance to the American flag, we constitute a people of Porto Rico, as an entity about to disappear, may be, but not as yet extinguished. * # "The people of Porto Rico has not declared war on any nation whatsoever and is therefore neutral. The above may sound awkward, but let it be known as a fact to all Porto Ricans, those who are now citizens of the United States, that Congress provided you with that citizenship in order that you be obliged to take up arms in defense of the American flag, without which privilege human conscience would have been violated had you been enlisted. * "It is logical, therefore, that in order that Porto Ricans be called to shed their blood for the American flag, they were given American citizenship, it is reasonable that those who have not sworn flag are not compelled to defend another but the flag of Porto Rico; that flag, that flies yet as the moral representation and symbol of the people of Porto Rico, who yet exists as a political body. * * The flag does not wave lawfully over the castles of Porto Rico; but lives there in the hearts of every Porto Rican, * 2 # those who have not sworn American citizenship. * * No matter how powerful the foe may be, only for that dear flag would the sacrifice be offered. "How little does it matter that the Prevost Marshall decides that the citizens of Porto Rico have to fight for the American flag-how little does he know that physical strength is not all!!! The flag of a fatherland needs more (257 F.) for its defense-it needs the spiritual embodiment of heart and soul that there may be strength, true force, to be able to strike the death blow to the enemy and proclaim victory." The author then discussed the danger of a nation obliging men "as slaves to defend a cause for which they have no ideal," and states that it "sounds impossible that the Prevost Marshall could decide to engross the American army with men whose ideals are not the same as those of Americans," and that the people of Porto Rico, whom he calls "the Pariah," as the legal definition of a citizen of Porto Rico who has not changed his status, is neutral in this terrible war; that the Pariahs form a lawful entity, who have no governing power, and who have been compelled to allow themselves to be governed by others. Fate is appealed to behold them "weak and powerless, driven by force!!! That all has been decided by the Prevost Marshall, but he who thus decided, who thus presses on the defenseless and the weak, he who compels, based on might, that man be driven by force to fight for a flag that is not his own, he who thus drives man has no right to claim that man be a true, loyal soldier." The defendant then stated his position and advice that he had given to those who like himself had declined American citizenship, under the provisions of the Act of Congress of March 2, 1917, c. 145, § 5, 39 Stat. 953 (Comp. St. 1918, § 3803bb): "As soon as the statement of La Democracia was known, although no explanation of the decision of the Prevost Marshall was given, we, who have been so interested in the affair, have been the object of numerous inquiries on the matter from Pariahs all over the island and to one and all the same answer and information has been given: "Resistance against the mighty is of no avail-when-ever called to the front-we have to go-but never before solemnly expressing to the Military Commission that we are not citizens of the United States; that we are not ready and willing to swear loyalty to the American flag-but if nevertheless we are compelled to defend a flag, to which respect is due, but with which we have no moral ties nor progeny-let the Prevost Marshall's will be done! His and only his will the responsibilities be of human error. And then may be that that decision find a place in the pages of history more due to its effects than to the motives of its existence. "Oh! Washington, be thou witness of this struggle; behold man's conscience trampled upon by Might; * * * behold the Statue of Liberty and the Right of Man cast to the winds in fragments." The writer then reasons that, because the Pariah has been called upon to perform the same duties as citizens of the United States, his condition as a citizen "is equally esteemed and appreciated as that of President Wilson, inasmuch as the Pariah has been assigned the same. and equal duties as those assigned to the President's fellow citizens," and therefore that the Pariahs are placed upon equal grounds and authorized to discuss as equals. The defendant attacked the indictment by demurrer and a motion to quash on the following grounds: That the counts were improperly joined; that it did not set forth or allege the specific statements alleged to be false; that it did not set forth in any of its counts an offense known to the law or any violation of section 3 of the Espionage Act. The demurrer was overruled and the motion to quash was denied, except as to the fourth count, to which the defendant seasonably excepted. At the close of all the testimony the defendant filed a motion that the court direct a verdict of not guilty, and to the denial of this motion he seasonably excepted. The defendant also seasonably excepted to certain instructions of the presiding judge and the admission and exclusion of certain evidence, and has assigned these instructions and the rulings admitting or excluding this testimony as error. In addition, counsel for the defendant claimed in argument that the second and fifth counts were bad for duplicity, because the offenses of causing insubordination, etc., and attempting to cause insubordination, etc., are alleged in each of them, and that these are separate offenses, as shown by the disjunctive "or" in the statute; that while this objection was not urged at the trial, and is not made a part of the bill of exceptions, the error is apparent on the face of the record, and the court should take notice of it, although not assigned. [1, 2] It is undoubtedly true that the court, in the exercise of its discretion, may notice a plain error on the face of the record, although not assigned; but we do not think the indictment is open to the charge of duplicity. Only one offense is alleged, which may be committed in two modes, and both of these modes are joined in one count. Either causing insubordination, etc., or the attempt, are different modes of committing one and the same offense and both may be alleged in one count. Crain v. United States, 162 U. S. 625, 634, 16 Sup. Ct. 952, 40 L. Ed. 1097; May v. United States, 199 Fed. 53, 117 C. C. A. 431 United States v. Dembrowski (D. C.) 252 Fed. 894. The joinder of counts which the defendant assigns as error is authorized by section 1024 of the Revised Statutes (Comp. St. § 1690) and is fully sustained in Pointer v. United States, 151 U. S. 396, 400, 14 Sup. Ct. 410, 38 L Ed. 208, and Ingraham v. United States, 155 U. S. 434, 15 Sup. Ct. 148, 39 L. Ed. 213. [3, 4] As the indictment was drawn, there was an attempt to charge, in the first and fourth counts, the commission of the first offense set out in section 3; that of "willfully making or conveying false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies." It was necessary to allege in these counts that the statements made by the defendant were false and willfully made. As to the last two offenses in the section, set out in the remaining counts, it is immaterial whether the statements made by the defendant were false or not; it was only necessary to allege that they caused, or were an attempt to cause, insubordination, etc., or that they obstructed the enlistment or recruiting service of the United States, and that they were willfully made with such intent. [5] The articles published by the defendant were set forth at length, and it was not necessary to specify the particular statements in them by which it was alleged the defendant committed the offenses with which he was charged. Their language requires no expert knowledge for its interpretation, and no explanation was necessary by way of innuendo to make its meaning clear. Lockhart v. United States, 250 |