Petition for Rehearing — Stephan v. United States

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IN THE | CLERK

October Term, 1942 be a

S V7 :

No. 792 ,

MAX STEPHAN

Petitioner,

Vv. os

THE UNITED STATES OF AMERICA. ;

On Petition For Writ Of Certiorari To the United States

Circuit Court Of Appeals For the Sixth Circuit = 85

And Motion for Continuance rl Order NTRS oa of Judea ty

NICHOLAS SALOWICH,

1401 Barlum Tower, -

» Counsel for Petitioner. +. ak as

Nashville; Tennessee, . es - ‘oes

Of Counsel,’ = \ SRS A See

MOERS, INC., 170 E. LARNED ST., DETROIT, MICH.

" ’ . ,

Petition for Rehearing ........

Statement of Facts

Questions Presented in the Original Petition. .

Opinion of Court Below .

Argument:

II.

III.

IV.

The indictment is bad. The overt acts

alleged standing alone or tacked together

do not constitute a crime. The indictment

does not allege overt acts which constitute

the crime of treaSOM .................::cc cesses

Petitioner urges that aid and comfort for

the sole benefit and comfort of an individ-

ual is without the evil intent and motive

“to adhere to, give aid and comfort to an

enemy” in direct furtherance of the hos-

tile designs of the enemy country and

is not treason . eintagsiseandendeties eh cabana vce

Witness Krug, 2 an officer | in 1 the German

Luftwaffe and a sworn adherent to the

Nazi philosophy, could not testify as a

competent witness in a criminal trial in

a federal court . Ee lacaiiogsnngs oad Peed sont

The admissibility of incompetent, irrele-

vant, immaterial and obscene testimony,

part of which was stricken too late, was

highly prejudicial and incurable .............

The general verdict of guilty as charged

was a miscarriage of justice. There was

fatal variance between the indictment and

MITTS PONTE TEE ONE

aceite i as

the proof, and a complete failure to sub-

mit any evidence of an overt act supported

by the testimony of two witnesses to the

same overt act essential to sustain the

crime of treason 36

VI. The United States District Attorneys

made repeated reference to the fact that

no witness had testified for the defense,

resorted to intemperate, improper remarks

and by inference, implication and innu-

endo incited passion in the jury in viola-

tion of defendant-petitioner’s substantial

rights Sail aleiaeke’ REGO Oe 40

VII. Petitioner urges that the court failed to

charge with definiteness, clarity and cer-

tainty as to what constitutes overt acts in

adhering to and giving aid and comfort to

an enemy country, and omitted to charge

git IEE a ie 42

VUl. A fair and impartial trial was denied be-

because the jury were not secluded........ 46

IX. The sentence is wholly disproportionate

to the offense charged ......................0000000..... 49

NEES Ree tila ir EN 52

NE oooh ci alin aris wad pnetattndl oh rekon gaconiomeasemioas 53

‘e La See Ee ER PO et A

ili

List of Authorities Cited

Aetna Ins. Co. v. Kennedy, 301 U. S. 389 ... 30

Agneilo v. United States, 269 U. S. 20 39

Alberty v. Unitea States, 9i en (2nd) 461 43

Amos v. United Siates, 255 U. S. 313 : 35

Brown v. Mississippi, 297 U. S. 278 36

Benson v. Uniied States, 146 U. S. 326 i 30

Berger v. United States, 295 U. S. 88-89 41

Boyd v. United States, 142 U. S. 450 34-35

Byars v. United States, 275 U.S. 28 36

Carrol v. United States, 16 Fed. (2nd) 951 44

Canty v. Alabama, 309 U. S. 629 36

Chambers v. Florida, 309 U. S. 227 36

DeJianne v. United States, 282 Fed. 739 43

Ex parte Bollman, 8 U.S. (4 Cranch) 75

17, 24, 25, 37, 44, 50, 52

Ex parte Watkins, 7 Peters (U. S.) 568, 8 Law Ed.

786 ‘ 50

Ex parte Yerger, 8 Wall. 85 101 16

Evans v. United States, 153 U. S. 587-606 14, 50

Frisbie v. United States, 157 U. S. 160-166, 39 L. Ed.

657 a 15

Funk v. United States, 290 U. S. 371 , 00, 31, 32

Glasser v. United States. 86 L. Ed. 405-412 30

Gouled v. United States, 255 U. S. 298 35

Grau v. United States. 287 U. S. 124 36

Griffin v. United States, 295 Fed. 439 | ‘ 49

Harrison v. United States, 200 Fed. 669 49

Holt v. United States, 218 U. S. 245-251 47-48

Kelly v. United States, 76 Fed. (2nd) 847 .

Lake County v. Rollins, 130 U.S. 662-670... .. 16

Lisbena v. California, 314 U. S. 219, 239, 240 36

Logan v. United States, 144 U. S. 263-301 ANT 30

Lomax v. United States, 37 App. (D. C.) 414......__ 7,48

Lomax v. United States, 313 U.S. 544 oo. 36

Mattox v. United States, 146 U.S. 140-151... 33

McElroy v. United States, 164 U. S. 76-80... 38, 39, 50

McNabb v United States, No. 25, Oct. Term, 1942

aE IP ree eg SRN EUs Ace a ee DT ae AA Be 32, 35, 36

Meyer v. Calwalader, 49 Fed. 32 00000. 48-49

Miller v. United Staets, 120 Fed. (2nd) 972 ............... 46

Ohio Bell Tel. Co. v. Public Utilities Com., 301 U. S.

BI rete ods Silene Ca Renee Theo a IVeeee ey 30

Pace v. United States, 27 Fed. (2nd) 519 ................. 43

Rosen v. United States, 245 U. S. 467-470 ........... 30-31

Safford v. United States, 233 Fed. 495 00.00... 43

Stone v. United States, 113 Fed. (2nd) 70 (C. C. A.

PERSE Rint Nery GH, SAAT Te aeons Want mee R eS Slteh 47-48

Terry v. United States, 7 Fed. (2nd) 28-30 (C. C. A.

Ena ole LOSI aap EPI et Dae Wn Mee NOE EERIE PoP 14

Todd v. United States, 221 Fed. 209-210 2.0.0.0... 33

United States v. Britton, 107 U. S. 665-9... 50

United States v. Burr, 25 Fed. Case No. 14692 (b) 27 40

United States v. Burr, 25 Fed. Case No. 14693, p.

5 ns, RR REN Nahe Ranboiediln MERION USL CREE! Bh «ihc JES! 38-44

Rp OE CEA SA URE Doct ON KCRW SEEM Mey 17, 20, 28, 44

United States v. Burr, 25 Fed. Cas. No. 14692... 5

United States v. Burr, 25 Fed. Cas. No. 14692 (a),

Fe ita ohne as iviiea ss tan sibslua pr omea 5

United States v. Carll, 105 U. S. 611 |... on... 50

United States v. Cruikshank, 92 U. S. 542... 13, 18, 50

United States v. Fricke, 259 Fed. 673.................... 18, 25, 44, 51

United States v. Fries, 9 Fed. Case No. 5126, p. 914

eee arte he eee eS OE ee SENET RNS SUP 35, 37, 50

United States v. Gooding, 25 U. S. 473-5 .0.......cc...... 14

United States v. Hanaway, Fed. Case No. 15299 (2

Wall. Jr. 139) ........... sites dk sieecileeian: a

United States v. Herberger, 272 Fed. 290. ioe aa oe

United States v. Hoxie, 26 Fed. Case No. 15407, p. 399

iki eee Se

United States v. . Ogden, 105 Fed. 371 chosateNate, aa

United States v. Reid, 12 How. 361 ... seseses Oy OO, OL

United States v. Robinson, 259 Fed. 685, 690

..19, 20, 26, 32, 39, 44

United States v. - Phila. & R. Ry. Co., 232 Fed. 953-5 27

United States v. Wilson, 28 Fed. Case No. 16730, p.

(| Pe RL ena RAR At hese Ree CMe EM era 14

United States v. Werner, 247 Fed. 709 .....000000000..... 16, 20, 50

Vernon v. Alabama, 313 U.S. 547.000.0000... 36

Ward v. Texas, 316 U. S. 347-356 ................cccc cece 36

Weeks v. United States, 232 U. S. 383 200.000... 35

Weems v. United States, 217 U. S. 349, 30 Sup. Ct

RMON NSE EEA De lr RE RO ARMIN SOD ene RERG We ee 7, 43

White v. Texas, 310 | ERE POR: cn Rees rae SS aD 36

Wilson v. United States, 162 U.S. 623 000... 44

Wimmer v. United States, 264 Fed. 11 (C. C. A. 6)

PROMOS RP RIE RE TAM TECUMSEH ate 18, 24, 25, 37

Wolf x v. United States, 259 Fed. 388-394 0000000000000... . 38-39

Young v. United States, 97 U.S. 62 00. 17-18

Constitution of the United States

Constitution, Art. ITE, See. 3 ooo... ccc cces Senee ee

Constitution, Amendments VI, VIII, XIV, Sec. 1 51

United States Code

U. 3. © Fille a Oe Se 3,15

U.S. C. Title 8, Sec. 738, Sub-secs. “A” and “E” 4

Miscellaneous Volumes

The Hoppet, 7 Cranch, 389-394 ................... 39

, eo Be SS Cc + - ene 17, 18, 20, 44

Act of March 4, 1909, Ch. 321, par. + 35 Stat. 1088... 15

Fed. Case No. 18276 (2 Wall. Jr. 1384) 20000... 44

“Brief for the United States in Opposition,” p. 12....... 4,19

Webster’s Internationa] Dictionary .......0.0....000.000....... 15

Wharton on Criminal Ev., 10th Ed., Vol. I, Sec. 358,

p. 721 . fi AE sch A ba AR 29

“Prisoners of War Convention Between the United

States of America and Other Powers, Geneva,

Daly Si, BE, BD oil iii stninccn 6

RRR Rate RL ES LMT UN IIL STs oS ss PEEP: Be

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1942

No. 792

MAX STEPHAN, Petitioner

THE UNITED STATES OF AMERICA.

Motion for Continuance of Order for Stay of Execution of

Judgment.

To the Honorable, the Chief Justice of the United States,

and the Associate Justices of the Supreme Court of the

United States:

Comes now the petitioner, by his Counsel, and respect-

fully represents that should this Honorable Court deny the

within petition for rehearing, that the order entered by this

Court, April 14th, 1943, staying the execution of judgment

be not vacated but continued, and in support thereof sets

forth as follows:

1. That a motion for a new trial, based upon newly dis-

covered evidence, was filed in the District Court for the

Kastern District of Michigan, at Detroit, Michigan, on April

28th, 1943, and was noticed by counsel on April 28th, 1943,

to be brought on to be heard on May 10th, 1943.

2. That said motion is made in conformity with Rule 2 (3)

of the Rules of Criminal Procedure, promulgated by this

Court on May 7th, 1934, under the Act of Feb. 24, 1923,

e. 119, 47 Stat. 904 as amended, 18 U.S.C. 688.

5. That unless an order as prayed be entered, irrevocable

injury will result.

4. That this is a meritorious motion, made in good faith,

and is not filed for the purpose of delay.

Therefore this petitioner respectfully prays that the

order by this Court entered April 14th, 1943, staying execu-

tion of judgment in the above entitled cause, be not vacated

but continued until the proceedings, based upon the motion

for a new trial, be finally disposed of.

NICHOLAS SALOWICH,

JAMES E. McCABF,

Counsel for Petitioner.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1942

No. 792

MAX STEPHAN

Petitioner,

THE UNITED STATES OF AMERICA.

On Petition For Writ Of Certiorari To the United States

Circuit Court Of Appeals For the Sixth Circuit.

PETITION FOR REHEARING

To the Honorable, the Chief Justice of the United States,

and the Associate Justices of the Supreme Court of the

United States:

Max Stephan, Petitioner in the above-entitled matter, re-

spectfully requests the above-entitled Honorable Court that

he be granted a rehearing in the above-entitled cause after

decision made and entered therein on April 5, 1943, deny-

ing his Petition that a Writ of Certiorari be issued out of

the above-entitled Court to the United States Circuit

Court of Appeals for the Sixth Circuit so that the decision

of the latter Court filed on February 6th, 1943, (affirming

the judgment and sentence of the United States District

Court in and for the Eastern District of Michigan on Au-

gust 6th, 1942, that the Petitioner, “said defendant, Max

Stephan, be by the said United States Marshal hanged by

the neck until he, the said Max Stephen, is dead”) might

be reviewed by the Supreme Court of the United States

and that the decision of said Circuit Court of Appeals be

reversed. As grounds for said rehearing Petitioner re-

spectfully sets forth the following:

That Petitioner was not served with a copy of the reply

to the Petition filed herein or with Brief for the United

States in opposition until on, or about, Saturday, April 5th,

1943, at about 10:00 A. M. of said day, Eastern War Time,

said service having been made through the mail addressed

to the law offices of counsel for Petitioner in the City of

Detroit, Michigan, and that Petitioner has had no oppor-

tunity to meet the points made and arguments urged by

the Honorable Solicitor General of the United States in

opposition to the Respondent’s Petition for Writ of Cer-

tiorari.

The Petitioner has no means whereby he can ascertain

what persuasive force, if any, the Brief for the United

States may have had upon the Court in reaching the deci-

sion denying the Writ of Certiorari. Whether this Honor-

cble Court accepted Respondent’s statements or denied the

Writ upon the inherent weakness of the Petition, counsel

could not know. It is upon the assumption that the Court

adopted the former course, that Petitioner believes he has

suffered a prejudice in not having had an opportunity to

be heard after receiving a copy of the Respondent’s Brief,

it having been received about the same time as the clerk’s

telegraphic notice of order entered denying petition.

Additional and major reasons which Petitioner submits

should justify a reconsideration are that his Petition for

Writ of Certiorari presented important questions of Con-

stitutional Law and the serious question of interpretation

and construction of the Constitutional definition of Treason.

This question is one of great importance to the Federal

Jurisprudence. As it has never been determined by the

Supreme Court of the United States it is now respectfully

urged that the Honorable Court permit Petitioner the op-

portunity to be heard on the questions presented to the

Appellate Court as to what constitutes Treason against the

United States.

That since the entering of the Order denying the Peti-

tion for a Writ of Certiorari new evidence of extreme im-

portance to the Constitutional rights of the Petitioner has

been discovered, which evidence has prompted a motion

for a new trial to be prepared for presentation to the United

States District Court for the Eastern District of Michigan.

This motion urges that Petitioner now and at the time

he was charged in the Indictment with the crime of Trea-

son was not and could not have been a citizen of the United

States nor owe allegiance to the United States under the

Constitution (Art. 3, Sec. 3) or U. S. C., Title 18, Ch. 1,

CORA Ct OO ARR Ee LEWIN RAL SIO A a BETS BA GE

Sec. 1 (March 4, 1909, Ch. 321, par. 341, 35 Stat. 1153) and

could not be guilty of the crime of treason.

It is the contention of the Government that petitioner’s

argument that the overt acts alleged do not prove a crime

“is predicated upon an erroneous concept of the essential

elements of the crime of treason,’ and set up in support

thereof (page 12 of Brief for the United States in opposi-

tion) that “on the breaking out of a war between two na-

tions, the citizens or subjects of the respective belligerents

are deemed, by the law of nations, to be enemies of each

other” citing cases. The Government must definitely take

a stand without ambiguity or equivocation, and cannot

solely for the prosecution of its case against Max Stephan,

impose upon him all the obligation of citizenship and while

the appeal in the instant case was pending, sue Agnes

Stephan, his wife, cancel her citizenship, on the grounds

of fraud, by proceedings had in the District Court, Detroit,

before the Honorable Edward J. Moinet, District Judge,

and intern her in a concentration camp as an enemy alien,

where she now is. The District Attorney under the law

(U. S. C. A., Title 8, Sec. 738) must take steps to cancel

citizenship procured by fraud and upon a showing made,

the final order, preceding the certificate is voided (sub. “e”

of Sec. 738, supra). This was done with Agnes Stephan

whose certificate was obtained at the same time, under

the same circumstances and on the identical grounds as

that of the petitioner, her husband. The certificate of Max

Stephan resting in the same category as that of his wife is

equally void and he too is an enemy alien as she, yet for

the sole purpose of prosecution, his citizenship is unassailed

that the Government may say as they do (page 12, Brief,

supra) “that the defendant owed allegiance to the United

“tates.” Manifestly, this could not be true if he were an

enemy alien as his wife now is, yet the Government per-

sists in this paradox, and in going in diametrically opposite

directions at the same time, irreconciliably bespeaks wan-

ton, deliberate persecution.

That, further, additional new evidence has been discov-

ered and included in the motion for a new trial, which

evidence goes to the crux of the charge in the Indictment

and tends to prove the total lack of intent or motive to

commit Treason against the United States. An intention

to commit Treason is an offense entirely distinct from the

actual commission of that crime. United States v. Burr,

25 Fed. Cas. No. 14692 (a), at pp. 13, 14; that the statute

under which Petitioner was prosecuted is unconstitutional

in that it enlarges upon the Constitutional definition of

Treason. Chief Justice Marshall, speaking in the Burr trial

(25 Fed. Cas. No. 14692) said: “It is that of which the

American people have been most jealous, and therefore,

while other crimes are unnoticed they have refused to

trust the National Legislature with the definition of this

(treason) but have themselves declared in their Constitu-

tion that it shall consist ONLY in levying war against the

United States, or in adhering to their enemies, giving them

aid and comfort.” United States v. Burr, 25 Fed. Cas. No.

14692.

No argument propounded by the counsel in opposition

can reconcile the necessity under International Law of ac-

cording War prisoners the courtesies due their position and

rank with the fact that witness Krug is alleged to be an

enemy, a secret agent for, spy for, and secret representa-

tive for the German Government (R. Vol. I, pp. 2, 37, 38,

54, 55, 83, 86, 87, 115, 116, 117, 119, 121, 284, 303, 304). (Gov-

ernment’s Brief in opposition p. 19).

: ,

If Krug was a prisoner of War his status as such pre-

cluded the necessity of a charge of treason against petition-

er. Krug as the record proves, was an escapee (R. 38) and

had not contacted his superiors (R. 111) for nearly twenty

months. The only punishment open to Krug under Inter-

national Law “is disciplinary punishment” (Art. 50, p. 5238,

Infra). (Prisoners of War Convention between United

States of America and other Powers, signed at Geneva

July 27, 1929, Art. 45-49, 50-51).

When Krug escaped from a Canadian War Prisoner’s

Camp he was a prisoner of War (Art. 45, p. 5237, supra)

(R. 38). His status in America was still that of a prisoner

of War and it remained such (R. 115) and that status re-

mains unchanged. His total lack of contact with the Ger-

man Government as proved on the trial (R. 111) negatives

the alleged charges that he was an enemy within the con-

stitutional definition of the crime of treason.

Petitioners well appreciate what motions for rehearing

mean and what is necessary to exist in order to obtain

their allowance. We are well aware that the Honorable

Justices of this Court do not formulate orders or opinions

excepting only in accord with true law, the facts being

understood or admitted.

Being deeply and everlastingly based in the conviction

that our cause is right we respectfully and earnestly urge

indulgence and patience to reach truth and proper conclu-

sions. We are appraling to this Honorable Court on the

highest ground or nature and in furtherance of Justice.

Petitioners have struggled on in the appeal in the faith

and well-grounded hope that law and justice will ultimately

cbtain in the Court in this cause.

Because of no opinion, nor any reason assigned and filed

in the denial of the instant original petition for Writ of

Certiorari we are at a loss to know just what to say in

helpfulness to the Court in support of the present petition

for rehearing.

We deem it prudent therefore to address ourselves to the

Court to beg their indulgence for permission to make a

short statement relying on the fact that, “Federal Appel-

late Courts, will, in the exercise of a sound discretion, no-

tice error in the trial of a criminal case, although the ques-

tion was not properly raised by objections below, where

the refusal to review would shock the judicial conscience.”

Weems v. United States, 217 U. S. 349, 30 S. Ct. 544; and

“There is a well recognized exception to the general rule

(passing on the sufficiency of evidence not challenged in

trial court) that, in criminal cases involving the life or

liberty of the accused, the Appellate Courts may notice

and correct plain errors in the trial of the accused which

appear to have seriously prejudiced his rights, although

those errors were not challenged or reserved by objections,

motions, exceptions or assignments of error.” Kelly v.

United States, 76 Fed. (2d) 847; 122 Fed. (2d) 461. “On

appeal in a capital case the court will consider the evidence

as disclosed by the record to determine whether it was

sufficient to support a verdict * * * although the record

showed no exception taken to the deficiency of the evidence

to support the record.” Lomax v. United States, 37 App. (D.

C.) 414.

The attorneys for Petitioner were not the attorneys on

the trial. Because of failure to make timely objections and

tc save exceptions it was necessary, in order to settle a

proper bill of exceptions, to rely on the face of the record

for assignments of error. The Order Settling the Bill of

Exceptions (R. Vol. 1, pp. 31, 365, 366) included the entire

transcript of all testimony and proceedings in the above

entitled cause. On that record twenty-five errors were

assigned to the Honorable Circuit Court of Appeals, Sixth

Circuit. The opinion of that Court (R. Vol. il, pp. 1-37)

commented frequently on the failure of trial counsel to

offer timely objections (R. Vol. II, pp. 14, 26, 27, 30, 34)

and to save exceptions.

Counsel for Petitioner did not deem it legal or proper

to raise the question of dereliction of trial counsel nor dam-

age to the civil rights of the respondent-petitioner due to

tactical error of counsel but relied solely on assignments

of error predicated upon palpable and incurable error ap-

pearing on the face of the record. Nor do we raise the

question now except to point out to this Court the appar-

ent prejudice to Petitioner’s Constitutional rights to com-

petent counsel especially in a criminal case in which the

judgment and sentence was death by hanging. We feel

bound to do this believing that the opinion of the Circuit

Court of Appeals would have been different had proper

objections been made and exceptions saved on the trial

on which to base error. It is settled law that counsel can-

not waive any rights of a defendant in a criminal case espe-

cially cne involving the death penalty.

Furthermore, a careful reading of the opinion (R. Vol.

II) discloses that the Honorable Court did not follow the

Record in its entirety. Petitioner respectiully submits that

there is a misconception of the face of the record set out

in the opinion of the Honorable Circuit Court of Appeals

(R. Vol. II, p. 31).

SEF PREPARE FLUE LAIR LE ye MEL EP oR ON ay OTR ED SOR

—

The original Brief of this Petitioner in Petition for Writ

of Certiorari denied April 5, 1943, at pp. 67-70 attempted

to point out the error to this Honorable Court and urged

that in justice to this Petitioner that he be permitted to

address himself to the Court and beg its indulgence so

that the entire record might be placed before this Court

for examination without regard to technical or tactical

errors to the end that justice might be served.

That Petitioner has been advised by his counsel, and be-

lieves, that there is merit in his Petition that a Writ of

Certiorari should be allowed in the present proceedings

and he believes that if counsel can bring to this Honorable

Court the actual points heretofore set forth and upon which

counsel rely to invoke its jurisdiction, the merits of his

cause will be sufficient to entitle him to a reversal.

Jurisdiction

The jurisdiction is invoked under Sec. 240 (a), 28 U. S.

C., Section 347 (a). The Petition herein was denied by

order of this Honorable Court entered April 5, 1943.

Statement of Facts

Statement of facts fully set forth in original Brief for

Petitioner, pp. 25-31.

Questions Presented In the Original Petition

The original Petition filed herein presented the following

questions:

1. Do the overt acts in the indictment support the

charge of treason, and does the indictment with

particularity and certainty charge the crime of

treason?

2. Does aid and comfort to an individual for his sole

benefit constitute aid and comfort to the enemy

country?

3. Did the Court err in permitting witness Krug, a

Nazi Luftwaffe Officer, to testify as a competent

witness in a capital case in a Federal Court?

4. Did the Court err in permitting witness Krug to

testify after giving the Nazi salute, and while

attired in the full uniform of an officer of the

German Army to the incurable prejudice of the

substantial rights of the defendant?

5. Did the Court err in failing to compel witness

Krug to answer proper questions on cross-exam-

ination?

6. Did the Court err in admitting incompetent, ir-

relevant, immaterial and obscence testimony which

incurably prejudiced the substantial rights of the

defendant?

7. Did the Court err in admitting incompetent and

irrelevant testimony relative to acts and declara-

tions of Krug elsewhere and subsequent to the

overt acts charged in the indictment?

8. Did the Court err in admitting the incompetent

and irrelevant exhibits, i. e., epaulets, a Grey-

hound Bus Company map, a revolver and cart-

10.

11.

12.

13.

14.

15.

16.

ridges, Government’s Exhibits 4, 9, 12 and 13, re-

spectively, all of which were prejudicial to the

defendant’s substantial rights?

Did the Court err in failing to direct a verdict

for the defendant upon conclusion of the testimony,

because there was fatal variance between the in-

dictment and the proof?

Did the Court err in failing to direct a verdict

for the defendant upon conclusion of the testimony

because of the insufficiency of the evidence, and

was the verdict of the jury a miscarriage of jus-

tice?

Should the Court have declared a mistrial during

the closing argument when the United States

District Attorney made repeated reference to the

defendant’s failure to produce witnesses and made

the direct statement that the defendant had not

taken the stand?

Did the intemperate, improper and inflammatory

remarks, inciting passion, in the closing argu-

ments of the United States District Attorney preju-

dice the defendant’s substantial rights?

Did the charge of the Court clearly define the

crime of treason?

Did the charge of the Court fully, clearly and with

particularity define an overt act constituting the

crime of treason?

Did the charge of the Court fully, clearly and

with particularity instruct the jury as to what

constitutes ‘adhering to the enemy, giving them

aid and comfort’?

Did the words and phrase which alleged Krug to

be, ‘a secret agent for,’ a ‘spy for,’ and ‘secret rep-

resentative of said Government of Germany in

the furthering and carrying on of its war against

the United States,’ incurably prejudice the de-

fendant’s substantial rights when the words and

phrase were read, for the first time in the trial,

by the Court in its charge to the jury; since the

only testimony introduced was in direct refutation

of those allegations?

17. Did the Court err in permitting the jury during

the trial to separate each noon, and go home each

night, relying solely on their discretion to protect

them from unlawful exposure and the undue out-

side influences of personal contact, public senti-

ment, newspapers and radio?

Opinion Of Court Below

The opinion of the Circuit Court of Appeals for the

Sixth Circuit is reported in 133 Fed. (2d) 87, and is printed

in Vol. 2, pp. 14-37 of the Transcript of Record filed with

the original Petition for Writ of Certiorari. This opinion

affirmed the judgment and sentence of the United States

District Court for the Eastern District, Southern Division

of Michigan.

SS LI ES PETE SOLON OE SFE BS LIL TIE IOS LI ILIA BE AON RAINE ELA EY IME RIES

ARGUMENT

The indictment is bad. The overt acts alleged

standing alone or tacked together do not constitute

a crime. The indictment does not allege overt acts

which constitute the crime of treason.

Petitioner urges that the indictment is bad; that every

indictment, to be sufficient, must have embodied within it,

and alleged with certainty and precision, allegations of such

acts as constitute overt acts which, standing alone or tacked

together, constitute a crime. The overt acts alleged in the

indictment in the case at bar (R. 1-6) do not set out a valid

cause of action under any statute or law.

It is fundamental that an indictment, to be effective as

such, must set forth the constituent elements of a criminal

offense; if the facts alleged do not constitute such an offense

within the terms and meaning of the law or laws on which

the accusation is based, or if the facts may all be true and

yet constitute no offense the indictment is insufficient.

The fact that the counts of an indictment are in proper

form will not save them from the Constitutional objection

that they do not sufficiently disclose the cause and nature

of the accusation.

In the instant case, “the defect is not in form but in sub-

stance.” United States v. Cruikshank, 92 U. S. 542, 556,

and, as reported in Evans v. United States, 153 U. S. 606,

the Court quoted Lord Chief Justice Holt as saying, “a

fact that appears to be innocent cannot be made a crime by

adverbs of aggravation.”

To permit an indictment to stand which charges as trea-

son a number of alleged “overt acts” which do not or could

not constitute treason, would only accomplish a miscarriage

of justice.

Were it true that an indictment could contain a series

of “overt acts” some of which did not constitute treason,

and also that proof of any one of said acts charged in such

case would sustain a conviction and the jury be instructed

that if they believe any one of the acts to have been proved,

they might return a verdict of “guilty as charged in the

indictment,” then there would be no refuge in the Con-

stitutional guaranty that “no person shall be convicted of

treason unless on the testimony of two witnesses to the

same overt act,” and the prosecution could assure itself

of a conviction by the simple expedient of including in the

indictment as an “overt act” any act which might be easily

susceptible of proof and impossible for the defendant to

deny. In Terry v. United States (C. C. A. 9), 7 Fed. (2d) 28,

30, the Court said: “and further a conspiracy is not an

omnibus charge, under which you can prove anything and

everything, and convict of the sins of a lifetime.”

Petitioner respectfully submits that each overt act of

treason as mentioned in the Constitution, constitutes a sepa-

rate, distinct and complete crime in itself. Each overt act,

standing by itself must be a complete charge containing all

the elements necessary to charge the crime of treason.

(United States v. Gooding, 25 U. S. 473, 475; United States

2. Wilson, 28 Fed. Case No. 16730, p. 718).

Petitioner urges that the indictment alleges overt acts

that do not constitute a “charge which brings the accused

clearly within the scope and requirements of the statute

creating the offense, and so identifies the offense as to en-

able the accused to fully prepare his defense * * *.” Fris-

bie v. United States, 157 U.S. 160, 166, 39 L. Ed. 657.

The crime of treason stands upon peculiar ground. The

Constitution of the United States (Const. Art. 3, Sec. 3)

does not elaborate the overt acts of treason but uses the

limiting words, “Treason against the United States, shall

consist only in levying war against them, or in adhering

to their enemies, giving them aid and comfort.”

The U.S. C. Title 18, C. 1, See. 1, says: “Whoever owing

allegiance to the United States levies war against them or

adheres to their enemies, giving them aid and comfort

within the United States or elsewhere, is guilty of trea-

son.” (Mar. 4, 1909, Ch. 321, par. 1, 35 Stat. 1088.)

The adverb “only” is defined in Webster’s International

Dictionary (unabridged) as “no or nothing more or other

than; for no other purpose, at no other time, in no other-

wise, etc., than; exclusively; solely; merely.”

The significance of this word “only” in the context un-

doubtedly was intended by the framers of the Constitution

in defining the crime of treason to give full protection to

the citizens by limiting its meannig so that no act of Con-

gress could ever affect the rights of a person charged with

that crime. It is to be believed that the design of the

framers of the Constitution, and the people who adopted

it, was to express the fundamental law in such terms as

would ernbrace every present and future consideration.

The general Principles of Interpretation as followed by

this Honorable Court is clearly stated in its own words:

“Why not assume that the framers of the Constitution, and

the people who voted it into existence, meant exactly what

it says? At the first glance, its reading produces no im-

pression of doubt as to the meaning. It seems all suffi-

ciently plain; and in such case there is a well-settled rule

which we must observe. The object of construction, applied

to a Constitution, is to give effect to the intent of its

framers, and of the people in adopting it. This intent is

to be found in the instrument itself; and when the text

of a constitutional provision is not ambiguous, the courts

in giving construction thereto, are not at liberty to search

for its meaning beyond the instrument.”

“To get at the thought or meaning expressed in a statute,

a contract or a Constitution, the first resort in all cases, is

to the natural signification of the words, in the order of

grammatical arrangement in which the framers of the in-

strument have placed them. If the words convey a definite

meaning * * * then that meaning, apparent on the face

of the instrument, must be accepted, and neither the courts

nor the legislature have the right to add to it or take from

it.” Lake County v. Rollins, 130 U. S. 662, at page 679.

“The great and leading intent of the Constitution and the

law must be kept constantly in view upon the examination

of every question of construction.” Ex parte Yerger, 8

Wall. 85, at page 101.

“Treason embraces the existence both of a state of mind

and the commission of overt acts.” United States v. Werner,

247 Fed. 709. “In order to constitute treason the accused

must in general be guilty of some act which has for its

direct aim the furtherance of the hostile designs of the

enemy.” United States v. Herberger, 272 Fed. 290, quot-

ing 30 Fed. Cas. No. 18272. “There can be no doubt that

the words ‘aid and comfort’ are used in the statute in the

same sense that they are in the clause of the Constitution

defining treason, Art. III, Sec. 3, that is to say in their hos-

tile sense.’ Young v. United States, 97 U.S. 62. Chief Jus-

tice Marshall in the Burr trial, 25 Fed. Cas. No. 14692 said:

“Jt is that of which the American people have been most

jealous, and therefore, while other crimes are unnoticed

they have refused to trust the National legislature with

the definition of this (treason) but have themselves de-

clared in their Constitution that “it shall consist only in

levying war against the United States, or in adhering to

their enemies, giving them aid and comfort.”

No one of the overt acts alleged in the indictment nor

all of them tacked together constitute a crime. The intent

to commit a crime cannot be impugned to innocent acts by

the mere process of alleging overt acts within the four

corners of an indictment thereby raising mere trespasses

to the dignity of a public offense, particularly to the crime

of treason. “The crime of treason should not be extended

by construction to doubtful cases.” Ex parte Bollman, 8

U. S. 75. ;

The mere fact that the body of an indictment alleges cer-

tain acts, and the form and requisites of an indictment are

complied with will not elevate an otherwise innocent act

to the degree of an overt act manifesting criminal intent

tending toward the completion of a criminal object, nor one

that has for its object the furtherance of the hostile designs

of an enemy against the United States. “In order to con-

stitute treason the accused must in general be guilty of

some act which has for its direct aim the furtherance of the

Nt Se EOS oP eA EAE ASTRA I AR

hostile designs of the enemy while the state of war exists,

which act involves a want of loyalty.” United States v.

Herberger, 272 Fed. 290, quoting 30 Fed. Cas. No. 18272.

“The intent in giving aid and comfort to the enemy must

be to tender such assistance to the enemy of the govern-

ment, and not merely to assist another as an individual.”

United States v. Fricke, 259 Fed. 673, for, “There may be

aid and comfort without treason.” Young v. United States,

97 U. S. 62. “Without an intent to give aid and comfort

to the enemy there is no treason.” Wimmer v. United

States, 264 Fed. 11 (C. C. A. 6).

The hiatus between misprision and actual participation

in a criminal conspiracy to commit treason is vast.

This Honorable Court said in United States v. Cruik-

shank, 92 U. S., at page 557, “According to the view we

take of these counts, the question is not whether it is enough

in general, to describe a statutory offense in the language

of the statute, but whether the offense here has been de-

scribed at all,” and at page 559, “but it is needless to pur-

sue the argument further. The conclusion is irresistable

that these counts are too vague and general. They lack the

certainty and precision required by the established rules of

criminal pleading. It follows that they are not good and

sufficient in law. They are so defective that no judgment

of conviction should be pronounced upon them.”

il.

Petitioner urges that aid and comfort for the sole

benefit and comfort of an individual is without the

evil intent and motive “to adhere to, give aid and

comfort to an enemy” in direct furtherance of the

hostile designs of the enemy country and is not trea-

son.

No act alleged in the indictment as an overt act con-

stituting treason can be interpreted as hostile to the United

States of America. The one count setting out thirteen overt

acts are but a recital of innocent acts toward an individual

on his birthday.

The testimony adduced at the trial prove such acts to

be harmless in effect and are each and all of them wholly

devoid of any color of intent to be disloyal to, or hostile

to the United States of America. A criminal intention can-

not be assigned to an act merely by alleging it where the

act itself does not manifest such intention. United States

v. Robinson, 259 Fed. 685, at page 690. :

An intent can only be inferred from the acts and words

of the principals and in the crime of treason such acts must

be induced by the intent to directly further fhe hostile

designs of an enemy country together with an active,

sympathetic, participating adherence to the enemy country.

“In addition to obvious necessary elements, treason as thus

defined, embraces the existence both of a state of mind and

the commission of overt acts and prescribes why the latter

shall be proven * * *. It is conceivable that a defendant

ee eer

REALTOR AIT SOF. ANG te MS w IS

may have this condemned attitude of mind or be what is

deemed a ‘traitor at heart’ and yet not expose himself to

treason because he has created no hostile act.” United

States v. Werner, 247 Fed. 709. “Overt acts are such acts

as manifest a criminal intention and tends toward the ac-

complishment of the criminal object. They are acts by

which the purpose is manifested and the means by which

it is intended to be fulfilled * * *. It may be possible to

piece bits together of the overt act, but if so, each bit must

have the support of two oaths.” United States v. Robinson,

259 Fed. 694. Overt act must be clear proof, not conjecture

or inference.” 30 Fed. Cas. No. 18272.

In the Burr case it was adduced that men, boats, arms

and provisions had been assembled. bullets had been manu-

factured, incriminating correspondence haa been carried

on. Chief Justice Marshall speaking in that case (United

States v. Burr, 25 Fed. Cas. No. 14692) said: “But it is

equally clear that an intention to commit treason is an

offense entirely distinct from the actual commission of that

crime.” * * * “The crime really complete was a con-

spiracy to commit treason, not an actual commission of

treason. If these communications were not treason at the

instant they were made no lapse of time can make them so.

They are not in themselves acts. They may serve to ex-

plain the intention with which acts were committed, but

they cannot supply these acts if they be not proved.”

“A conspiracy to resist by force the execution of a law of

the United States in particular instances only or a con-

spiracy for a personal or private, as distinguished from a

public and national purpose, is not treason, however great

the violence or force, or numbers of the conspirators may

be.” United States v. Hanaway, Fed. Cas. No. 15299 (2

Vall. Jr. 139). “In determining whether defendant is guilty

of adhering to, and giving aid and comfort the question of

intent is a vital ingredient of the crime; and though he

assisted an enemy alien, whom he knew to be such, he is

not guilty where he intended merely to assist him as an

individual, and not to give aid and comfort to enemies of

the United States.” United States v. Fricke, 259 Fed. 673.

The intent of this petitioner was adduced on the trial.

What did the petitioner do that elicited the charges set

forth in the indictment? He met a Nazi flyer through

the medium of a third person, and within the first few

minutes of their meeting (R. 168) the accused told him

“why don’t you give up, you haven’t got a chance.” Veri-

fication is found in the Nazi flyer’s testimony (R. 95) “you

should go back where you come from.” “Did he (defend-

ant) say that to you?” Krug answered, “Yes, that is right.”

This is further corroborated (R. 224, 230, 232).

Petitioner respectfully directs attention to the record (R.

108) where the testimony of Krug further corroborates

the lack of intent or motive of the petitioner to do more than

give aid to an individual.

“Q. You remember testifying before the grand

jury? A. Yes.

Q. All right. Did the defendant, Max Stephan, at

any time say to you that he wanted to destroy the

Government of the United States? A. He wants to

destroy the Government?

Q. Did he ever say to you that he wanted to destroy

the Government of the United States? A. No, never.

He never said that to me.

Q. Did you study Latin when you were in high

school? A. Language?

Q. Latin. A. No, I didn’t study Latin.

Q. Do you know the meaning of the word ‘subvert,

and I will ask the interpreter is there such a word in

German the equivalent of our word ‘subvert’ and the

noun ‘subversion’?

The Interpreter: No, there isn’t.

Mr. Amberson: No such word?

The Interpreter: There isn’t, but, of course, it can

be expressed in German, yes.

Mr. Amberson: All right.

(Question interpreted.)

The Interpreter: Yes, he knows exactly what ‘sub-

vert’ means.

Q. (By Mr. Amberson, continuing): Did Max

Stephan say anything to you to the effect that he

wanted to bring about a subversion of the American

Government? A. No, he didn’t tell me anything about

it.

Q. During your conversation with him, did you say

anything to him about destroying the American form

of government? A. No.

Q. Have you been made any promise of a parole

by the British Government because of your testimony

in this case? A. No, they didn’t do anything.

Q. Are you expecting any special privileges as a

prisoner of war because of the fact that you have come

here and volunteered to testify in this case? A. As

far as the British or by you?

Mr. Amberson: I think perhaps a translation should

be made.

The Interpreter: You mean in Canada?

Mr. Amberson: Yes, that is right.

(Question interpreted. )

A. No, I don’t expect anything from the Canadian

Government.

Q. (By Mr. Amberson, continuing): Now, did you

request of Max Stephan at any time during your con-

versations any aid from him for the Government of

Germany except as it applied to you individually?

(Question interpreted.)

—

A. No, I didn’t.

Q. And that was not your purpose in talking with

Max Stephan, was it? A. No.

Q. To secure aid for the Government of Germany?

A. It was just my purpose to get back to Germany

again.

Q. And it was not your purpose to tear down the

Government of the United States, was it? A. Ofcourse

not.

Q. Now, you stand today in this court room, wit-

ness, as an enemy of our country; that is true, is it?

A. Yes, it is.

Q. And those of us who are here in this court

room, we are your enemies; that is true, is it not? A.

Of course you are.

Q. I ask you, therefore, what is—strike it. You

understand from your knowledge of international law

that there is no power on earth that can make you

testify in this lawsuit unless you wanted to; you know

that? A. That is right.

Q. Will you state to the jury then what your pur-

pose is in coming here as an enemy of this country

and testifying in this case against a man who is charged

with treason against our country; what is your pur-

pose. your object? A. The purpose is to clear out

that he didn’t do what he is charged with. I was only

asked to tell the truth about the case and what is

wrong, what FBI has charged him and all the other

persons who are charged with having known who I

am.”

The signed statement given to special agents of the

Federal Bureau of Investigation at the time of petitioner’s

arrest, and introduced on the trial over objection of counsel

(R. 218) gives a summary of the acts of petitioner on

which the overt acts of treason were predicated and charged

in the indictment. In that statement (R. 225) the lack of

intent to be disloyal to his country and the total absence

AE NRT RO UNE DS ARON AN RD LPN AGP I OSLER SIEM AER NRE ED

of an evil motive to further the hostile designs of an enemy

country is found in petitioner’s words: “About 11 o’clock

a friend of mine named Bill Nagel, who used to be post-

master in the last war, came into my place, and I asked him

for advice. I asked him what he would do if a ledy he

knew called him up and said she had a German war prisoner

in her place. I told him the man wanted to go to Chicago.

He agreed that maybe he would help the man get to Chi-

cago.” Again (R. 225): “I then closed my place about 12

o'clock. Right after I had closed, the clerk from the Field

Hotel rapped on the door and told me about a fellow who

looked funny to him, coming to the Field Hotel. The clerk

said that this man could be a German War prisoner from

Canada. To this I didn’t make any comment. He suggested

that he bring the fellow over to my place the next morning

so I could have a talk with him. I told him not to do that

because I didn’t want anything to do with him.”

The foregoing words in the record are the only utterances

in the entire testimony that relate to subversive or trea-

sonable acts and clearly indicate the reason for Krug’s

(Nazi flyer) presence in Detroit, and a total lack of con-

spiracy to commit treasonable acts against the United States

and directly in furtherance of a hostile design of an enemy

Country. The entire record, with these few exceptions, is

filled with testimony relating to acts that were purely per-

sonal in nature and none of them constitute a crime.

Certain of the alleged “overt acts” merely charge meet-

ing together, conferring together, counseling, or giving false

and misleading information. It has been uniformly held

that neither utterances nor meeting and conspiring can

ever amount to overt acts of Treason. Wimmer v. United

- tates, 264 Fed. 11, pp. 12, 13; Ex parte Bollman, 18 U.

S. (4 Cranch) 75; United States v. Hoxie, 26 Fed. Cas. No.

15407, p. 399. In the case of Wimmer v. United States,

964 Fed. 11, at page 13, the Honorable Circuit Court of

Appeals, Sixth Circuit, said: “Thus we find, in the con-

stitutionally defined crime, two elements, the intent and the

act; neither is dominant. Intent minus the act is not trea-

son, any more than act minus intent is.”

Petitioner respectfully avers that there was no overt act

of treason laid in the indictment, that it was bad for want

of certainty and precision. ‘How ever flagitious may be

the crime of conspiring to subvert by force the government

of our Country, such conspiracy is not treason. * * * It

is more safe, as well as more consonant to the principles of

our constitution, that the crime of treason should not be

extended by construction to doubtful cases.” Ex parte

Bollman, 8 U. S. (4 Cranch) 75. It is not sufficient that

the accused person shall merely have knowledge that an-

other person “was an enemy of the United States.” He

must actually do some act in furtherance of a hostile de-

sign with an evil motive and intent to give aid and com-

fort to an enemy before he can be guilty of treason. Mere

words which tend to conceal the identity of another per-

son is not treason. The doctrine of treason under the Con-

stitution of the United States, hangs upon the intention of

the accused to give aid and comfort and adherence to the

National enemies of the United States as distinguished from

giving aid or comfort to an individual alien enemy in his

personal wants and comforts. United States v. Fricke, 259

Fed. 673. “Further distinction is found in the very words

of the Constitutional definition. Treason is “adhering to

their enemies, giving them aid and comfort.” Both adher-

ence and giving aid are necessary. To ‘favor or support’

RRSP IOV DUET, FORO PORE REE wk Com SS 0G UO tog th EOS.

is, very likely, ‘to adhere’; but it does not carry the idea

of giving aid and comfort, unless by a rather remote im-

plication. Hence, it may well be said that adherence by

words only is an offense quite distinct from treason.”

At page 402 of the Hoxie case Justice Livingston made

the following pertinent comment: “Once disregard these

exceptions, and render the constitutional rule as flexible

or comprehensive as it is now suggested to be, and prosecu-

tions for treason will become as common as indictments for

petit larcenies, assaults and batteries, or other misde-

meanors. If every opposition to law be treason, for very

like this is the language we have heard, as all offenses

partake in some measure of that quality, who can say how

many of them will in time become ranged under the class

of treason. Neither you, nor the Court, can feel any am-

bition of leading the way, in setting a precedent so danger-

ous, or one that in any degree tend to demolish that barrier

which has been raised by the Constitution against construc-

tive treasons.” United States v. Hoxie, 26 Fed. Cas. No.

15407, at page 399. Nevertheless a question may indeed

be raised whether the prosecution may lay as an overt act

a step taken in execution of the traitorous design, innocent

in itself and getting its treasonable character only from some

covert and undeclared intent. * * * “Therefore I have the

gravest doubt of the sufficiency of the first and second

overt acts of the first count and of those of the second

count, which consists of acts that do not openly manifest

any treason. Their traitorous character depends upon a

covert design and as such it is difficult for me to see how

they can conform to the requirement.” United States v.

Robinson, 259 Fed. 685, at page 690. “Every fact necessary

to constitute the crime charged must be directly and posi-

tively alleged, and nothing can be changed by implication

or intendment.” United States v. Philadelphia & R. Ry.

Co., 232 Fed. 953, at page 955.

On re-direct examination (R. Vol. I, p. 111) the utter im-

possibility of Krug to have had contact with any of his

superior officers or with the German Government in any

manner, was established by the Assistant United States Dis-

trict Attorney as here quoted:

“By Mr. Babcock:

Q. Lieutenant, in what country were you born? A.

Germany.

Q. You are a citizen of the Government of Ger-

many? A. That is right.

Q. As well as being a military officer? A. Yes.

The Court: In what part of Germany were you

born? A. In Bavaria.

Q. And, of course, you are a subject of the Gov-

ernment of Germany? A. Yes.

Q. Now, Mr. Amberson was asking you about com-

munication with your superior officers— A. (Inter-

posing): Yes, sir.

Q. (Interrupting): Now, as a matter of fact, your

communication is all through the Swiss Consul, isn’t

it? A. Yes.

Q. Any communication you have with the Govern-

ment of Germany is carried on through the Swiss Con-

sul? A. Yes.”

How then can it be claimed that Krug, not having had

contact with his superior officers or with the German Gov-

ernment from the 28th day of August, 1940, when he was

captured in England (R. Vol. I, page 37) to the 18th day

of April, 1942, when he entered the United States illegally

(R. Vol. I, p. 38), be said to be “a secret agent for, spy for,

and secret agent of said government of Germany” (R. Vol.

I, p. 2)?

ese RU SAL AN PANO ANGIE EPP OLE LSE LERGE SE SA SEP LILLIES ALDI AD LE ARE OL, RRR TE IRIE ET PII

How can the intent of petitioner to give assistance to an

alien, who had not been legally admitted into the United

States, for his sole benefit, be constructed by implication

and intendment into overt acts charged in the indictment

(R. Vol. I. pp. 1-6) as the overt acts of treason with the

intent and evil motive to adhere to and give aid and com-

fort to an enemy in the furtherance of the hostile designs

of an enemy country? Assistance to, and harboring an

alien, who had not been legally admitted to the United

States, for his sole benefit is not treason. Petitioner re-

spectfully urges if these acts were not treason at the instant

they were made no lapse of time can make them so. United

States v. Burr, 25 Fed. Cas. No. 14692.

Ill.

Witness Krug, an officer in the German Luftwaffe

and a sworn adherent to the Nazi philosophy, could

not testify as a competent witness in a criminal trial

in a federal court.

Petitioner respectfully urges that the doctrine of the

Funk case should not apply to the competency of witnesses

generally, and serve to remove the disability placed upon

certain classes of witnesses from the inception of our Fed-

eral Couris in abrogation of the doctrine established by

United States v. Reid, 12 How. 361, affirmed and prevailing

through the long line of decisions down to the Funk case.

Relying on the rights of persons as guaranteed in the Con-

stitution Amendment VI, Petitioner respectfully submits

that the right to be confronted with witnesses against him

cuarantees the defendant the right to be confronted with

COMPETENT WITNESSES and that “competency” as

applied to witnesses involves both capacity and qualifica-

tions, and imparts existence of all essentials to render him

fit to testify.

Petitioner in his brief to the Circuit Court of Appeals,

Sixth Circuit, set out at length the reasons for his conten-

tion that Krug was an officer of the German Luftwaffe,

adhering to the Nazi philosophy, wholly devoid of moral

principles, and with such disregard of the sanctity of an

oath or affirmation as to bar him from giving evidence in

a capital case in a Federal Court of the United States.

The Honorable Circuit Court of Appeals in its opinion

(R. Vol. II, pp. 26, 27) said: “This proposition was not

raised at the trial and was probably waived by appellant’s

cross-examination of Krug. However, we think it not im-

proper to discuss it briefly. When a witness takes the

stand to testify, the law presumes that he is a competent

witness, and incompetency must be shown by the party ob-

jecting to him. Wharton on Criminal Evidence, 10th Ed.,

Vol. 1, Sec. 358, p. 721.”

Every accused having the constitutional right to counsel

must rely wholly on his counsel. If the tactical errors of

such counsel to raise proper and timely objection incurably

waived an inviolable right of the defendant, to his dam-

age, and prejudiced his interests and jeopardized his life

and liberty it would be repugnant to those fundamentai

principles of liberty and justice guaranteed by the Sixth

Amendment not to take full cognizance of those errors.

“To preserve the protection of the Bill of Rights for hard

pressed defendants, we indulge every reasonable presump-

tion against the waiver of fundamental rights.” Aetna Ins.

r Ae te TV EA DAE IDES IOE TE AS

Co. v. Kennedy, 301 U.S. 389; Ohio Bell Telephone Co. v.

Public Utilities Commission, 301 U.S. 292; Glasser v. United

States, 86 L. Ed. 405 (412).

Deciding against the contentions of petitioner in his ap-

peal the Honorable Circuit Court of Appeals (R. Vol. II,

p. 26) said: “It is said Krug was incompetent as a wit-

ness under the laws of Michigan and that the Federal

Courts are bound thereby. Granted that this was the old

rule, an important exception has been engrafted upon it. In

Funk v. United States, 290 U. S. 371, the Court said in sub-

stance that in criminal cases federal courts are not bound

by such rules but that in the development of truth they

are to apply them as they have been modified by changed

conditions.” Petitioner urges that in the Funk case the sole

inquiry went to the competency of a wife to testify in behalf

of her husband in a criminal case; the question of her com-

petency to testify against him was not before the court.

In the Benson case, Benson v. United States, 146 U. S.

325, at p. 326, the question was whether the evidence of a

wife was improperly admitted against her defendant hus-

band in a criminal trial, and whether one Mary Rautzohn

who had gained a severance was a competent witness

against the defendant. In Rosen v. United States, 245 U.S.

467, at page 470, the Court said, “While the decision in

United States v. Reid, supra, has not been specifically over-

ruled, its authority must be regarded as seriously shaken

by the decisions in Logan v. United States, 144 U. S. 263,

301, and in Benson v. United States, 146 U. S. 325.”

Even though the Court in deciding the Rosen case ac-

cepted the authority of the Benson case rather than that

of the earlier decisions and disposed of the questions “in

ihe light of general authority and sound reason,” petitioner

respectfully urges that the reasoning in these two cases,

which was affirmed in the Funk case (290 U. S. 371) could

not have anticipated a situation in which a Nazi adherent

would be offered as a witness by the prosecution in a crim-

inal case in a federal court. This Court has said in Funk

v. United States that “public policy is not fixed, but may

change under changed conditions as regard competency,”

and following the words of the Court in the Rosen case peti-

tioner urges that when the reason for the rule ceases to

exist the rule itself ceases to exist. The reasons for the

old rule founded on the Common-law disabilities and set

out in United States v. Reid, 12 How. 361, was to admit to

the witness stand only those presumably honest, appreciat-

ing the sanctity of an oath, unaffected as a party by the

result, and free from any of the temptations of interest.

In the instant case, under unique and changed conditions,

and consistent with the costitutional guaranty to be con-

fronted by competent witnesses pursuant to the intention

of the framers of the Constitution and in the light of the

authority in the Reid case and the long line of decisions

which accepted its authority, petitioner respectfully sub-

mits that the reason for the rule in the Funk case has ceased

to exist; that Krug was not a competent witness in a crim-

inal case in a federal court; that the oath of allegiance to

Germany bound him unswervingly to the morally depraved

philosophy that denies the existence of a power other than

nature.

A witness must be bound in conscience. The competency

of a witness in a capital case is to be measured by the doc-

trine, “When evidence is estimated quantatively it is the

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support of the oath that counts.” United States v. Robin-

son, 259 Fed. 691. Tested by the chaotic conditions now

involving the world the philosophy and practices of the

Nazi regime is raised to the level of the most heinous crim-

inal philosophy in all history. If the rule in the Funk case

should prevail it would become enlarged to the point where

civil liberties would be threatened. If Krug is a competent

witnes then it must follow that Rudolph Hess, the notorious

Nazi leader now a prisoner of War in England, would like-

wise be competent to testify in a criminal case in a Federal

court if the prosecutors for the Government would elect

to call him. Public policy requires that the reason for the

rule in the Funk case does not hold in the instant case.

“We hold only that decent regard for the duty of courts as

agencies of justice and custodians of liberty forbids that

men should be convicted upon evidence secured under the

circumstances revealed here. In so doing, we respect the

policy which underlies congressional] legislation. The his-

tory of liberty has largely been the history of observance

of procedural safeguards. And the effective administration

of criminal justice hardly requires disregard of fair proce-

dures imposed by law.” McNabb et al. v. The United States,

No. 25, October Term, 1942, Decided March 1, 1943.

IV.

The admissibility of incompetent, irrelevant, im-

material and obscene testimony, part of which was

stricken too late, was highly prejudicial and incur-

able.

The legal presumption is that error produces prejudice.

Todd v. United States, 221 Fed. 209, 210. It is beyond the

limits of human belief to expect that any jury, sitting in a

criminal case, after weeks of newspaper headlines and

blasting radio newcasts had repeatedly been before the

attention of the general public, the emotions of war, incit-

ing passions and prejudices, everywhere expressed, could

be entirely free from the dangers of that influence. “Jurors

are human and not always conscious to what extent they

are in fact biased or prejudiced and their inward sentiments

cannot always be ascertained.” Mattox v. United States,

146 U. S. 140, 151. The presence of Krug in the full uni-

form of a Nazi Luftwaffe officer testifying as a Govern-

ment witness was prejudicial to the defendant’s rights be-

cause it incited hatred by continually reminding the jury of

war and the hysteria accompanying it. The Von Werra

matter (R. 70-73) was irrelevant and prejudicial. There

was absolutely no connection between the Von Werra mat-

ter and the charges against the defendant. It was not harm-

les hearsay (R. 73) (R. Vol. 2, p. 32) because the entire

testimony implied that there was a connection between

the Von Werra matter and the instant case. Counsel ob-

jected (R. 71) the prosecution promised to connect it up,

but never did, the court overruled the objection (R. 72).

The error was not cured by instruction to the jury at any

So tr

KS APONTE OE BOTA Le) PLM ERD EES NEOT LOTE PNM BO I

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time, nor referred to in the Charge of the Court. The

testimony regarding Krug’s relations with immoral women

(R. 185-193) was obscene. “We are of the opinion that

the ruling of the lower Court in refusing to exclude this

testimony was prejudicial error.” Tootham v. United

States, 203 Fed. 220 The court, too late (a day and a half

later), struck the testimony (R. 259-263) of these two

women. The error was not cured. Error was committed

when the testimony of Witness Parker (R. 201-208, 233)

was admitted together with Exhibits 4, 9, 10, i2, 13 (R.

366). The error was not cured by striking the testimony

too late (next day) (R. 259-263). The court did not ex-

clude the erroneously admitted exhibits (R. 260) which

were wholly incompetent, irrelevant and immaterial and

damaged the substantial rights of the defendant. The en-

tire testimony of the government witnesses was incompetent

and irrelevant because none of it proved an intention to

commit an overt act constituting a crime; all the testimony

was corroborative of acts which lacked the essentials to

raise them to the degree of overt acts constituting a crime.

The evidence was cumulative and referred to extraneous

matters. The words of this Honorable Court in Boyd v.

United States is in point:

“Proof of them only tended to prejudice the defend-

ants with the jurors, to draw their minds away from

the real issue and to produce the impression that they

were wretches whose lives were of no value to the

community, and who were not entitled to the full bene-

fit of the rules prescribed by law for the trial of human

beings charged with crime involving the punishment

of death. Upon a careful scrutiny of the record we

are constrained to hold that, in at least the particulars

to which we have adverted, those rules were not ob-

served at the trial below. However depraved in char-

acter, and however full of crime their past lives may

have been, the defendants were entitled to be tried

upon competent evidence, and only for the offense

charged.” Boyd v. United States, 142 U. S. 450, 12

Sup. Ct. 392.

Referring to the signed statement of the petitioner (R.

223-226) the words of the Court in United States in Fries.

infra, are pertinent, “We come now to the confession of

the prisoner voluntarily made on his examination before

Judge Peters. Here is a point of law relied on by the

prisoner’s counsel—that no man should be convicted of

treason but on the evidence of two witnesses or upon con-

fession in open court. * * * But happily our Constitu-

tion would not admit it if a hundred would swear to it.

That danger is wisely avoided.” United States v. Fries,

9 Fed. Cas. No. 5126, p. 914. The statement of defendant

introduced (R. 217) objected to (R. 219) and admitted (R.

222) was not corroborative of any testimony to overt acts

of treason and there were not two witnesses to any same

overt act of treason as required by Constitution Art. 3,

Sec. 3. The signed statement constituted the crux of the

government's case against the petitioner. “Accordingly the

question for our decision is whether the incriminating state-

ments made under the circumstances we have summarized

were properly admitted.” McNabb v. United States, No.

25, October Term, 1942, decided March 1, 1943. This Honor-

able Court in the same case, McNabb v. United States,

supra, at page 6, said: “It is true, as the petitioners assert,

that a conviction in the federal court, the foundation of

which is evidence obtained in disregard of liberties, deemed

fundamental by the Constitution cannot stand.” Boyd v.

United States, 116 U. S. 616; Weeks v. United States, 232

U.S. 383; Gouled v. United States, 255 U. S. 298; Amos v.

United States, 255 U. S. 313; Agnello v. United States, 269

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Aye AS OS AAPL LE EIB ARE LEB ODE LEED CLI PS IRL LEBENBE OOPS AED LAE LALA ELIE ALE DIELS NATE

U.S. 20; Byars v. United States 273 U.S. 28; Grau v. United

States, 287 U.S. 124. And this Court has, on Constitutional

grounds, set aside convictions, both in the federal and state

courts, which were based upon confessions ‘secured by pro-

tracted and repeated questions of ignorant and untutored

persons in whose minds the power of officers was greatly

magnified,’ Lisbena v. California, 314 U. S. 219, 239-40; or

‘who have been unlawfully held in communicado without

advice of friends or counsel,’ Ward v. Texas, 316 U. S.

547, 555, and see Brown v. Mississippi, 297 U. S. 278; Cham-

bers v. Florida, 309 U. S. 227; Canty v. Alabama, 309 U. S.

629; White v. Texas, 310 U. S. 530; Lomax v. Texas, 313

U. S. 544; Vernon v. Alabama, 313 U. S. 547.” (McNabb

v. United States, supra.)

Vv.

The general verdict of guilty as charged was a

miscarriage of justice. There was fatal variance be-

tween the indictment and the proof, and a complete

failure to submit any evidence of an overt act sup-

ported by the testimony of two witnesses to the same

overt act essential to sustain the crime of treason.

In the case at bar the indictment charges (R. 15), gen-

erally, that the “giving of aid and comfort by said Stephan

to said Peter Krug during April 18, 1942, and April 19,

1942, consisted in his receiving and treating with said

Peter Krug, in his furnishing to said Peter Krug hospitality

and entertainment, in his furnishing to and obtaining for

said Peter Krug money, necessities of life, and personal

effects, in his harboring said Peter Krug, in his concealing

the identity of said Peter Krug, in his giving of false in-

formation to citizens of the United States and others with

the intent to conceal the identity of said Peter Krug, in his

arranging for and providing transportation and means of

transportation in and about Detroit, Michigan and trans-

portation and means of transportation from Detroit, Mich-

igan to Chicago, Illinois, and his failure to report to proper

public officials and to military officials, law enforcement

agents, agents, representatives, immigration officials and

Department of Justice officials and agents of the United

States of America, the presence in the United States of

said enemy Peter Krug.” (R. 15)

The foregoing quoted verbatim from “Plaintiffs Re-

quests to Charge” (R. 15) enumerates more concisely than

a statement of facts the gist of the Government’s charge

in the indictment. The body of the indictment in the case

at bar is in one count consisting of twelve overt acts con-

taining a multiplicity of charges, some of which allege

harboring an alien not legally admitted to the United States,

some acts allege misprision, others allege aid and comfort

for the sole benefit of an individual and none of the acts

alleged in the indictment charge an overt act containing

the essential elements of the crime of treason. It has been

uniformly held that neither utterances nor meeting and

conspiring ever amount to overt acts of treason. Wimmer

v. United States, 264 Fed. 11, 12, 13; Ex parte Bollman, 8

U.S. (4 Cranch) 75; United States v. Hoxie, 26 Fed. Cas.

No. 15407, p. 399. “The crime of treason should not be

extended by construction to doubtful cases” Ex parte Boll-

man, 8 U.S. (4 Cranch) 75. “The doctrine of constructive

treason has produced much real mischief in another coun-

try; and it has been, for an age the subject of discussion

among lawyers, other public speakers, and political writers.”

United States v. Fries, 9 Fed. Cas. No. 5126 at p. 909. In

Wolf v. United States, 259 Fed. 388 at page 394 the Circuit

Court of Appeals, Eighth Circuit said: “The greatest danger

to justice from a jury is through a confusion of the real

issues in the case’, and the case of McElroy v. United States,

164 U. S. 76, at page 80 enlarges upon the need to confine

the indictment to one distinct offense.

The motion for Directed Verdict (R. 236), denied (R.

237) was predicated upon the total lack of proof sufficient

to prove an overt act of treason.

Marshall C. J. speaking in United States v. Burr, 25 Fed.

Case No. 14693, at pp. 179, 180, says:

“The Constitution and law require that the fact be

established by two witnesses. Not by the establishment

of other facts from which the jury might reason to the

fact. The testimony then is not relevant. If it can be

introduced, it is only in the character of corroborative

or confirmatory testimony, after the overt act has been

proved by two witnesses in such manner that the ques-

tion of fact ought to be left with the jury. * * * That

overt act must be proved according to the mandates of

the Constitution and of the Act of Congress by two wit-

nesses. It is not proved by a single witness.”

Petitioner urges that “all the circumstances as proved

must be consistent with each other, and they are to be

taken together as proved. Being consistent with each other

and taken together they must point surely and unerringly

in the direction of guilt. All the facts and circumstances

taken together as proved must not only be consistent with

the inference that the accused is guilty, but they must at the

same time be inconsistent with the hypothesis that he is

innocent and with every other rational hypothesis. Mere

-uspicions, probabilities or suppositions do not warrant a

conviction.” Underhill’s Criminal Law (4th Ed.) at p. 23.

“It is a positive rule of criminal procedure that the accused

shall not be charged with one crime and convicted of an-

other,” The Hoppet, 7 Cranch 389 (394), 3 Law Ed. 380.

In Wolf v. United States, 259 Fed. 388, at page 394, the

court said, “ * * * Patriotism must not become, even in-

nocently, a cloak for injustice. The right of an accused in

the courts of this nation to a fair trial must not vary with

the character of the crime.” The law of treason is care-

fully reviewed in United States v. Robinson, 259 Fed. 685,

and Petitioner urges that the reasoning of this case fairly

indicates the necessity for the jury to specify the particular

overt act of treason of which they find the defendant guilty,

where more than one overt act is alleged in one count in

the indictment.

A sentence cannot rest upon a general verdict of guilty,

where the indictment charges several alleged offenses, the

nature of which are not identical, especially where none

of the offenses charged contain the essential elements neces-

sary to charge the crime of treason. Some of the acts charged

in the present indictment partake of and consist in charges

of other offenses, namely, the crime of harboring and assist-

ing an alien not legally admitted to the Unitéd States, and

other acts which cannot be classified as crimes of any sort.

“In cases of felony, the multiplication of distinct

charges has been considered so objectionable as tending

to confound the accused in his defense, or to prejudice

him as to his challenges, in the matter of being held out

to be habitually criminal, in the distraction of the jury,

or otherwise, that it is the settled rule in England and

in many of our States, to confine the indictment to one

distinct offense or restrict the evidence to one transac-

tion.” McElroy v. United States, 164 U. S. 76, at page

80.

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Petitioner respectfully submits that the Honorable Dis.

trict Court erred in denying the motion for Directed Verdict

(R. 237, 238). “The Constitution having declared that

treason shall consist only in levying war, and having made

the proof of overt acts necessary to a conviction is a question

of vast importance, which it would be proper for the

Supreme Court to take fit occasion to decide, but which an

inferior tribunal will not willingly determine unless the

case before it should require it.” 25 Fed. Cas. No. 14693, at

page 181. In the case at bar the charge of harboring and

giving assistance to an alien illegally admitted to the United

States was raised to the dignity of a charge of treason con-

sisting a fatal variance between the indictment and proof.

VI.

The United States District Attorneys made repeated

reference to the fact that no witness had testified for

the defense, resorted to intemperate, improper re

marks and by inference, implication and innuendo

incited passion in the jury in violation of defendant

petitioner’s substantial rights.

Petitioner urges that, “no man feeling a correct sense of

the importance which ought to be attached by all to a fair

and impartial administration of justice, especially in crim-

inal prosecution, can view without extreme solicitude, any

attempt which may be made to prejudice the public judg-

ment, and to try any person, not by the laws of his country

and the testimony exhibited against him, but by public feel-

ings, which may be and often are artifically excited against

the innocent as well as the guilty.” 25 Fed. Case No. 14692

b), at p. 27. A prosecutor must be fair, he must draw a

careful line (R. 305); he should not seek to arouse passion

or engender prejudice. Comments by the United States

District Attorney, direct or indirect, upon the defendant’s

failure to testify, constitute misconduct on his part, and is

per se grounds for reversal of a judgment of conviction. In

the case at bar the United States Attorney made very defi-

nite reference to the failure of defendant to testify when he

said (R. 305), “Why in the name of heaven didn’t he bring

some witnesses in here to contradict what Krug said?” well

knowing that the defendant was the only witness who could

refute Krug’s testimony. On objection the Court said (R.

305), “Mr. Lehr, I can see crossed the line * * *,” but the

District Attorney immediately afterward said (R. 305),

“Krug’s statement stands on the record, ladies and gentle-

men of the jury, absolutely uncontradicted.”

Petitioner in his original pettiion urged (Orig. Pet. pp. 74-

82) that the doctrine of Berger v. United States, 295 U. S.

88, 89, be invoked and respectfully submitted that a mistrial

should have been ordered by the trial court. These are

times of war when the passions and feelings run high and

a more solemn duty rests upon the court to guarantee that

fair trial which the Constitution guarantees. The prosecut-

ing attorney at the outcome of his argument (R. 300) called

attention to the War, as a prelude for his plea for a verdict

of guilty; he intimated broadly that the death penalty would

not be invoked (R. 303), then proceeded in his argument

to denounce the defendant as “a traitor, a blackhearted trai-

tor” (R. 306) (R. 307) and continued to incite prejudice and

passion by appealing to the patriotism of the jury (R. 303,

304, 309, 310, 313) and then (R. 317):

“You ladies and gentlemen of the jury, today, in

these days of war, when our boys are on the front facing

pina POA RS STORRS AL NE TORLEOREET CB IOS LAREN EPL IEE GALLE LVL ALINE TILE LEA MIE: A ODER AE LIE IAD

the firing squads in order to protect America, you

twelve men and women here in this jury box, in this

Federal Court room, constitute the very front line of

defense of this country in behalf of protecting the inter-

nal security of America, and in that sense, ladies and

gentlemen, your Government, my Government—God

forbid, Max Stephan’s Government, asks you to return

a verdict of guilty as charged.”

The district attorney well knew that the witness on which

the Government relied was a prisoner of War (R. 37, 38, 83,

115, 116, 119, 304, 307), an alien who had illegally entered

the United States. Petitioner urges that the closing argu-

ment of the district attorney incurably prejudiced his sub-

stantial rights and a mistrial should have been ordered by

the Court instanter.

Vil.

Petitioner urges that the court failed to charge with

definiteness, clarity and certainty as to what con-

stitutes overt acts in adhering to and giving aid and

comfort to an enemy country, and omitted to charge

on other requisites.

In the case at bar the entire record went up to the Circuit

Court of Appeals, Sixth Circuit, as a settled Bill of Excep-

tions. Petitioner’s counsel, not having been the attorneys

on the trial, and the record being almost devoid of proper

and timely objections, relied solely on the doctrine that on

appeal in a capital case the Court, after an examination of

the entire record, will consider the evidence as disclosed by

the record to determine whether it was sufficient to support

a verdict, without regard to technical errors, although the

questions were not properly raised by objections below,

where the refusal to review would shock the judicial con-

science. Weems v. United States, 217 U. S. 349, 30 Sup. Ct.

544; cf. Lomax v. United States, 37 App. (D. C.) 414; Saf-

ford v. United States, 233 Fed. 495; Dejianne v. United

States, 282 Fed. 739; Pace v. United States, 27 Fed. (2d)

519; Kelly v. United States, 76 Fed. (2d) 847; Alberty v.

United States, 91 Fed. (2d) 461.

Petitioner respectfully submits that the charge is pre-

sumed to be for the assistance of the jury and must, there-

fore, be so presented in such language that it shall be under-

standable. The charge must be responsive to the matter

under consideration and the language of the Court is the

only proper evidence of what the law is on the facts in the

possession of the jury so that they may determine the issue

according to the law and the evidence. This requirement

is not filled by an abstract exposition of legal principles.

The jury, under the impressiveness and dignity of the judi-

cial office, the venerable and upright character of its occu-

pant, and the learning, acumen and experience which the

judge is assumed to possess are unconsciously influenced to

accept everything that comes from his lips as authoritative

and they permit his opinions upon the issues of fact involved,

so far as he may announce them, to guide them in their

deliberations.

Petitioner urges that the crime of treason, is of rare oc-

currence. The public, generally, are unaware of the ele-

ments necessary to constitute the crime of treason and a

jury could not of common knowledge be aware of the essen-

tial elements of the crime, and, regardless of an hundred

facts placed before them in evidence, they could not be ex-

YR. AR nas

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pected to apply those facts in reaching a correct verdict

without careful painstaking,comprehensive instruction as

to the law on the facts.

It has remained for the courts to interpret what consti-

tutes the overt acts of “adhering to, giving aid and comfort”

to an enemy and from a diligent search of the cases re-

ported it is clear that the courts have done so only with

extreme caution and obvious reluctance to construct alleged

acts from misdemeanors to the dignity of the high crime of

treason. United States v. Burr, 25 Fed. Cases No. 14692,

14693; Fed. Case No. 18,276 (2 Wall Jr. 134); United States

v. Herberger, 272 Fed. 290, quoting 30 Fed. Cas. No. 18,272;

Ex parte Bollman 8 U.S. (4 Cranch) 75; United States v.

Fricke, 259 Fed. 673; United States v. Robinson, 259 Fed. 690.

The jury, of course, are bound to follow the law as given

to them by the judge. Carrol v. United States, 16 Fed. (2d)

951. The rule as to confessions seems to be, if the court

determines its admissability, (R. 222) that the Court is to

submit the question to the jury with proper instructions

upon it. Wilson v. United States, 162 U. S. 623. The Court

in its charge omitted to instruct on the admissability of the

statement (R. 222-226) and omitted to instruct the jury that

the Constitution required anything in the nature of a con-

fession to be a “confession in open Court” and that no con-

fession could be admitted in evidence, except as corrobora-

tive or confirmatory until two witness had testified to the

same overt act of treason.

The “Von Werra matter” (R. 70-73) was incompetent,

irrelevant and prejudicial to the defendant’s substantial

rights. Its admissability was objected to (R. 71) but over-

:uled (R. 71-72), the court at the time saying, R. 72) “Well,

I will overrule the objection, but unless it is connected up

I will strike it out.” The Court never again referred to the

matter on the trial nor in his charge. It was never connected

up, nor ever struck from the record although it was

irrelevant, incompetent and highly prejudicial. The United

States District Attorney stated to the court that the “Von ;

Werra matter” was irrelevant to the instant case but was

important to another case (R. 71). “Mr. Babcock: Not yet,

but I submit to the court that we will connect it up * * * * *

not necessarily with this case, but the corroboration of it

appearing, the conversation, and I think it is rather im-

portant.” The district attorney prosecuting the accused on

the charge of treason prejudiced the substantial rights of the

defendant by introducing evidence of “another case”. The é

Court was under a duty to strike the Von Werra matter

and seasonably and properly instruct the jury so that this ‘

matter could not have been before them in the jury room i

during their deliberations to the prejudice of defendant’s

rights. 4

FEE tt ALLL ROLE LOO A

Petitioner respectfully submits that the charge of the

court (R. 318-341) was not comprehensive and clear as to

the law on the facts of what constitute “overt acts of trea-

son”; that the reading of the words “a secret agent for, spy

for, and secret representative of the said government of t

Germany”, brought to the attention of the jury for the first :

time on the trial by the court in its charge was prejudicial

error, inasmuch as the indictment had not been read to the

jury, and they had not heard the inflammatory words be-

fore, nor had they been subject to any testimony or evidence

to support the allegation. No attempt was made to cure,

explain or rule out the phrase; they stood alone, an incur-

ably prejudicial group of words which, coming from the

court in its charge, had all the force the jury under their

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oath were bound to heed. “It is required that it (courts

instruction) be so framed that a jury may not draw the

wrong conclusion therefrom.” Miller v. United States, 120

Fed. (2d) 972, and because thereof the jury were misled and

confused in their deliberations thereby denying the defend-

ant a fair and impartial trial.

Vill.

A fair and impartial trial was denied because the

jury were not secluded.

Petitioner respectfully submits that the isolation of the

jury and its aloofness and its care by trained and trust-

worthy bailiffs ought never to be abrogated. It is a protec-

tion to the jury itself. It is a protection to the prosecution.

It is a protection to the defendant. It is not alone necessary

to avoid evil—the thoughtful man avoids the appearance

even thereof. The jury should all be kept together and it is

unsafe to make any other rule.

In the case at bar the jury were drawn from a public ex-

posed to frequent newspaper publications and radio news-

casts at a time when the unhappy conditions arising cut

of the unnatural struggles of people at war creates new re-

lations among the citizens, when people are confused, ap-

prehensive and fearful, when feelings run high and passions

rise.

This war involves the entire world, and the “melting

pot” of the world, of which this District is strikingly repre-

contative, has not succeeded in refining the thoughts and

feelings of its polynationals to the degree that warrants

and permits freedom from prejudice and bias predicated

upon conditions abroad, where the very closest relatives of

the foreign born American citizens are involved in this

catastrophic world war.

In the present day and age, the courts take judicial notice

of radio newscasts, newspaper publications that literally

dramatize the events and color their news articles with

editorial opinions, trying lawsuits before trial by inference,

implication and innuendo. The Courts rightfully take judi-

cial notice of the obvious.

On appeal to the Circuit Court of Appeals, Sixth Circuit,

error was assigned that the court erred in exposing the

jury to undue outside influences and public sentiment by

not placing the jury in custody throughout the entire trial.

The Honorable Circuit Court of Appeals in its opinion (R.

Vol. II. p. 36) said, “There is nothing to indicate the appel-

lant was in the least prejudiced by the separation of the

jury.” Holt v. United States, 218 U.S. 245, 251.

Petitioner in his brief in support of the original petition

(B. 90-94) prayed that the circumstances surrounding the 4

case at bar did not give defendant the fair trial which was

his “sacred right.” “There is no right more sacred than the

right to a fair trial. There is no wrong more grievious

than its negations. Jurors are human. * * * Any course

is clearly illegal which would expose them to the danger of

influence outside the court. If a single juror is improperly

influenced, the verdict is as unfair as if all were. * * *

The whole jury was exposed to, and actually encountered an

outside influence.” Stone v. United States, 113 Fed. (2d) 70

(C. C. A. 6th). The Brief for the United States in opposi-

tion to the original petition (P. 34) relies on Holt v. United

States, as did the Honorable Circuit Court of Appeals, and

argues that both the United States Attorney and Counsel

for defendant informed the court that neither of them de-

sired seclusion of the jury. Petitioner respectfully submits

that trial counsel could not relinquish any substantial rights

of the defendant and by the obvious tactical error of failure

to insist that the jury be secluded did damage and prejudice

defendant’s rights to a fair and impartial trial. It is idle to

say that “there is nothing in this record to indicate that

the verdict returned reflected the jury’s consideration of

anything except competent proof adduced in the court

room” (Br. for the United States in opposition, p. 34). The

jury separated after each session of the Court to go to lunch

at noon, and to their respective homes each night with

nothing to protect them from exposure to hostile sentiment

and outside influences except the admonition of the Court

(R. Vol. II, pp. 7-13, 36). “When the judgment is weak,

prejudice is strong, and it is essential to faith in the jury

system that jurors should determine the facts submitted

to them wholly on the evidence offered in open court, un-

biased and uninfluenced by anything they may have seen

and heard outside the actual trial of the case.” Stone v.

United States, 113 Fed (2d) 70. In the famous “Hat Trim-

ming Case” Meyer et al. v. Cadwalader, 49 Fed. 32, Judge

Acheson set aside a verdict in favor of the Government be-

cause of articles which had appeared in several newspapers

of general circulation published in Philadelphia. United

States v. Ogden, 105 Fed. 371.

“It is idle to say that there is no direct evidence to

show that the jury read these articles. They appeared in

<he daily issues of leading journals and were scattered

broadcast over the community. The jury separated at the

close of each session of the Court, and it is incredible that,

going out into the community they did not see and read

these newspaper publications. That these published state-

ments were well calculated to prejudice the jury against

the plaintiffs and deprive them of a fair trial is a proposition

so plain that it would be a sheer waste of time to discuss

it.” Meyer et al. v. Calwalader, 49 Fed. 32; United States

v. Ogden, 105 Fed. 371; cf. Griffin v. United States, 295 Fed.

439: Harrison v. United States, 200 Fed. 669.

The case at bar is of vast importance to the federal juris-

prudence and to the civil rights of the people. Careful study

of Holt v. United States impels the Petitioner herein to pray

that the principles therein announced do not decisively

preclude him from the sacred right of a fair and impartial

trial by the safeguard of a secluded jury in a capital case,

particularly where the charge is treason.

IX.

The sentence is wholly disproportionate to the of-

fense charged.

Petitioner respectfully directs the attention of this

Honorable Court to the “Statement of Facts” in the Orig-

inal Brief for Petition for a Writ of Certiorari (B. 26-29)

“Plaintiff's Request to Charge” (R. 15), the opinion of the

Circuit Court of Appeals, Sixth Circuit (R. Vol. II, p. 16),

and the Indictment (R. 2-6) for a complete recital of the

twelve acts charged as overt acts of treason.

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A sentence cannot rest upon a general verdict of guilty

where the indictment char.2s several alleged offenses

(McElroy v. United States, 164 U. S. 76).

It is the duty of the Court to construe the penal provi-

sions of statutes within the limitations prescribed by the

Constitution Amendment VIII. To punish treason with

either death or imprisonment lies within the discretion of

the court but petitioner avers that “the provision of the

Federal Constitution prohibiting cruel and unusual punish-

ment is addressed to the Courts of the United States hav-

ing criminal jurisdiction and is a limitation on their discre-

tion.” Ex parte Watkins, 7 Peters (U. S.) 568, 8 L. Ed. 786.

In the case at bar petitioner was charged with acts which

do not contain the essential elements of a crime of any

class. The proof adduced on the trial was irrelevant, in-

competent and immaterial to the charge of treason; the

general verdict of guilty as charged is in return to an in-

dictment that is defective in substance, United States v.

Cruikshank, 92 U. S. 542, 556; cf. United States v. Carll

105 U.S. 611; United States v. Britton, 107 U. S. 665, 669;

Evans v. United States, 153 U.S. 587; the record is devoid

of evidence adduced on the trial to prove overt acts of trea-

son and no two witnesses testified to the same overt act of

treason; the record fails to prove that the defendant had

that condemned attitude of mind or committed any hostile

act that exposed him as a traitor at heart or in fact; United

States v. Werner, 247 Fed. 709; United States v. Fries, 9

Fed. Cas. No. 5126, p. 914; United States v. Hanawar , Fed.

Cas. No. 15299 (2 Wall. Jr. 139); Ex parte Bollman, 8 U.S.

(4 Cranch) 75; and that every act charged and proved was

an act of assistance to an individual for his sole benefit.

“In determining whether defendant is guilty of adhering

to, and giving aid and comfort the question of intent is a

vital ingredient of the crime; and though he assisted an

enemy alien, whom he knew to be such, he is not guilty

where he intended merely to assist him as an individual,

and not to give aid and comfort to enemies of the United

States.” United v. States v. Fricke, 259 Fed. 673.

Petitioner respectfully submits that he may be guilty

of some violation of law, but that he is not guilty of the

crime of treason and should not suffer the extreme penalty

of death in violation of his substantial rights to his life and

liberty as guaranteed him by the Constitution Amendment

VI, Amendment VIII and Amendment XIV, Sec. 1.

What constitutes the elements essential to constitute an

overt act of treason has never been determined by the Su-

preme Court of the United States or any inferior tribunal,

and petitioner believing that it is a question vital to the

people and to the federal jurisprudence prays that this

Honorable Court hear the petitioner and set aside the sen-

tence of death. “In times like these, when the public mind

is agitated, when wars and rumors of war, plots, conspir-

acies and treasons excite alarm, it is the dutyof the court

to be peculiarly watchful lest the public feeling should

reach the seat of justice, and thereby establish precedents.

which may become the ready tools of factions in times

most disastrous. The worst of precedents may be estab-

lished from the best of motives. We ought to be on our

guard lest our zeaj for the public interest lead us to over-

step the bounds of the law and the constitution; for al-

though we may bring one criminal to punishment, we may

furnish the means by which an hundred innocent persons

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may suffer. The constituiion was made for times of com-

motion. in the calm of peace and prosperity, there is sel-

dom great injustice. Dangerous precedents occur in dan-

gerous times. It then becomes the duty of the judiciary

calmly to poise the scales of justice, unmoved by the arm

of power, undisturbed by the clamor of the multitude.”

United States v. Bollman, 8 U. S. 75; cj. United States y.

Hoxie, 26 Fed. Cas. No. 15407, at p. 399.

Conclusion

For the foregoing reasons petitioners respectfully urge

that a rehearing be granted, that upon further considera-

tion the order of April 5, 1943, denying petitioner a writ

of certiorari be revoked, and that a writ of certiorari issue

to the Circuit Court of Appeals for the Sixth Circuit.

Respectfully submitted,

NICHOLAS SALOWICH,

JAMES E. McCABE,

Counsel for Petitioner.

Certificate

We, the counsel for petitioner, hereby certify that the

foregoing petition for rehearing is made in good faith and

not for the purpose of delay.

NICHOLAS SALOWICH,

JAMES E. McCABE.

— Ln SSSR REERMRSE . ’ Se

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