name of W. B. Slaughter on the *books of that [ when, a few days later, the Harriman learned bank, the powers of attorney purporting to of the failure of the Mercantile, such entries have been given by W. B. Slaughter to enable were made as to cancel the loan without dimthem to be transferred to the Harriman Bank inishing or changing the credits which otherwere forged. wise existed in favor of the Mercantile. To meet the check for $35,000 given on Saturday for the Thatcher purchase, on Monday morning, February 8th, C. C. Slaughter made out a deposit slip to show the deposit by W. B. Slaughter of a check on the Harriman National for $30,000, although no such check was in fact deposited; and on that day the check in favor of Thatcher for $35,000 was paid and debited by the Mercantile to W. B. Slaughter's account. The letter of the 7th sending the note to the Harriman reached that bank on the 10th, and, complying with the request it contained, a credit in favor of W. B. Slaughter for $30,000, the amount covered by the loan, was entered by the Harriman on its books. On the 17th of February the Mercantile Bank overdrew its account in the Harriman to the extent of $8,000, which that bank honored. It, however, telegraphed the Mercantile, calling attention to the overdraft and asked whether a remittance to cover it had been made. The telegram, moreover, referred to the $30,000 credit in favor of W. B. Slaughter and asked whether possibly it was intended that the amount of the loan credit should be placed to the account of the bank. In reply, C. C. Slaughter dictated a telegram in the name of the Mercantile Bank instructing that the amount of the credit of W. B. Slaughter be transferred to the credit of the Mercantile. On the receipt of this telegram the Harriman made the necessary bookkeeping entries to transfer the credit of $30,000 from the account of W. B. Slaughter to that of the Mercantile National Bank. On the next day, the 18th, however, the Harriman wrote W. B. Slaughter, Mercantile National Bank, Pueblo, informing him of the instructions they had received from C. C. Slaughter and what they had done under them, and ask*ing the former's approval. This letter was replied to on February 22d by C. C. Slaughter confirming his previous telegram and saying that the original intention was that the money borrowed should go to the credit of the Mercantile Bank for the use of W. B. Slaughter. Thus things stood until the 23d of March, when the Harriman received a telegram from W. B. Slaughter, president of the Mercantile Bank, telling them to cancel all authority of C. C. Slaughter to act as an officer of the Mercantile because he had resigned. The Harriman thereupon telegraphed and wrote W. B. Slaughter, informing him of what had transpired on the subject of the credit for the loan under the note and its transfer, and saying that, as he had given no personal instructions on the subject, they had made bookkeeping entries taking the $30,000 out of the account of the Mercantile so as to hold it for a full understanding of the situation; and Subsequently W. B. Slaughter notified the Harriman that he had never applied for the loan in question, or signed the note which evidenced it, and denied all liability. The appointment of the receiver and the bringing of the suit which we have stated at the outset followed in due season. [2] Passing the fact that both parties to the loan agreement, the Harriman Bank on the one side and W. B. Slaughter on the other, insist, although for different reasons, that the loan agreement has no existence, there nevertheless can be no room for dispute that such contract, by the failure to comply with its conditions and by the fraud and forgery committed concerning the collaterals as between the parties to it and those in privity, was rightly canceled and can be the source of no obligation against the Harriman Bank. The right of the Mercantile Bank as here asserted, if it has any existence, must rest, therefore, not in the loan agreement, but on some condition or consideration extraneous to that contract creating as against the Harriman and in favor of the Mercantile the duty to pay the amount which both the courts below awarded. [3, 4] No semblance of ground, however, supporting that view results from the undisputed facts which we have stated unless it can be sustained from two considerations: (1) The payment which was made by the Mercantile on February 8th of the check purporting to be drawn by W. B. Slaughter in favor of Thatcher and the making by C. C. Slaughter on the 8th of the fraudulent and false deposit slip purporting to show the deposit on that day by W. B. Slaughter of a check drawn by him on the Harriman for $30,000; and (2) the bookkeeping entries which were made by the Harriman on the 18th transferring the credit for the amount of the agreed loan from the account of W. B. Slaughter to that of the Mercantile Bank. But a moment's thought demonstrates that the circumstances referred to cannot possibly sustain the conclusions stated. This is true as to the first because both the payment of the check by the Mercantile and the making of the false deposit slip took place before the Harriman had even received the collateral note or made any entry on its books concerning the same; and the second because the mere bookkeeping entry made by the Harriman of credit to the Mercantile, in the very nature of things, was incapable alone of conferring rights on the Mercantile to which it was not otherwise entitled, especially in the absence of all consideration moving from the Mercantile to the Harriman and the nonexistence of any condition upon which to base even the pretext of estoppel in favor of A circular held such that the jury could find it was intended, and its tendency was, to influence persons subject to the draft to obstruct the carrying of it out. 6. ARMY AND NAVY LAW 40-CONSTITUTIONAL DRAFT-CON 90 OBSTRUCTING SPIRACY-FREE SPEECH. the Mercantile as against the Harriman re- | 5. ARMY AND NAVY 40-ESPIONAGE ACT— sulting from action taken by the former upon INTENT AND TENDENCY OF CIRCULAR. the faith of the book*keeping credit. Indeed, when the reasoning upon which the relief below was awarded is considered, and the arguments pressed at bar sustaining that result are weighed, they all at last come to the assumption that by some undisclosed process the Mercantile Bank was entitled to enforce as against the Harriman the contract for the loan agreement made with W. B. Slaughter, without the duty to comply with the obligations of that contract, and therefore became possessed of the power to enforce the contract against the Harriman despite the fraud and forgery practiced upon the Harriman in the attempt which was made to procure the benefits of the loan agreement. It follows that the judgment of the Circuit Court of Appeals (240 Fed. 111, 153 C. C. A. 147) and that of the District Court must be and they are reversed, and the case be remanded to the District Court with instructions, that after setting aside its judgment, it take such further proceedings as may be in conformity with this opinion. And it is so ordered. (249 U. S. 47) SCHENCK v. UNITED STATES. BAER v. SAME. A circular, the tendency of which is to influence persons subject to the draft to obstruct the carrying of it out, is not protected by the First Amendment, against Espionage Act June 15, 1917, because unsuccessful; title 1, § 4 (Comp. St. 1918, § 10212d), punishing conspiracy, accompanied by act to effect its object, circumstances in which it is done, and the questhe character of every act depending on the tion of right of protection against abridging freedom of speech in every case being whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent, a question of proximity and degree. 7. ARMY AND NAVY 40-ESPIONAGE ACT"RECRUITING"-"ENLISTMENT." "Recruiting," in Espionage Act June 15, 1917, tit. 1, § 3 (Comp. St. 1918, § 10212c), denouncing the offense of obstructing the "recruiting or enlistment service," is gaining fresh supplies for the forces, as well by draft as otherwise, and put as an alternative to enlistment or voluntary enrollment. [Ed. Note.-For other definitions, see Words (Argued Jan. 9 and 10, 1919. Decided March and Phrases, First and Second Series, Enlist 4. CRIMINAL LAW 393(1)-SELF-INCRIMI NATING EVIDENCE. Evidence even directly proceeding from defendants in a criminal proceeding is not excluded in all cases by the Fifth Amendment. ment.] This is an indictment in three counts. The first charges a conspiracy to violate the Espionage Act of June 15, 1917, c. 30, tit. 1, § 3, 40 Stat. 217, 219 (Comp. St. 1918, § 10212c), by causing and attempt*ing to cause✰ For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes to the sufficiency of the evidence that the defendants conspired to send the documents only impairs the seriousness of the real defence. [2-4] It is objected that the documentary evidence was not admissible because obtained upon a search warrant, valid so far as appears. The contrary is established. Adams v. New York, 192 U. S. 585, 24 Sup. Ct. 372, 48 L. Ed. 575; Weeks v. United States, 232 U. S. 383, 395, 396, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177. The search warrant did not issue against the defendant but against the Socialist headquarters at 1326 Arch street and it would seem that the documents technically were not even in the defendants' possession. See Johnson v. United States, 228 U. S. 457, 33 Sup. Ct. 572, 57 L. Ed. 919, 47 L. R. A. (N. S.) 263. Notwithstanding some protest in argument the notion that evidence even directly proceeding from the defendant in a criminal proceeding is excluded in all cases by the Fifth Amendment is plainly unsound. Holt v. United States, 218 U. S. 245, 252, 253, 31 Sup. Ct. 2, 54 L. Ed. 1021. insubordination, &c., in the military and transactions were hers. The argument as naval forces of the United States, and to obstruct the recruiting and enlistment service of the United States, when the United States was at war with the German Empire, to-wit, that the defendant wilfully conspired to have printed and circulated to men who had been called and accepted for military service under the Act of May 18, 1917, c. 15, 40 Stat. 76 (Comp. St. 1918, §§ 2044a-2044k), a document set forth and alleged to be calculated to cause such insubordination and obstruction. The count alleges overt acts in pursuance of the conspiracy, ending in the distribution of the document set forth. The second count alleges a conspiracy to commit an offense against the United States, to-wit, to use the mails for the transmission of matter declared to be non-mailable by title 12, § 2, of the Act of June 15, 1917 (Comp. St. 1918, § 10401b), to-wit, the above mentioned document, with an averment of the same overt acts. The third count charges an unlawful use of the mails for the transmission of the same matter and otherwise as above. The defendants were found guilty on all the counts. They set up the First Amendment to the Constitution forbidding Congress to make any law abridging the freedom of speech, or of the press, and bringing the case here on that ground have argued some other points also of which we must dispose. [5] The document in question upon its first printed side recited the first section of the Thirteenth Amendment, said that the idea embodied in it was violated by the conscription act and that a conscript is little better than a *convict. In impassioned language it intimated that conscription was despotism in its worst form and a monstrous wrong against humanity in the interest of Wall Street's chosen few. It said, "Do not submit to intimidation," but in form at least confined itself to peaceful measures such as a petition for the repeal of the act. The other and later printed side of the sheet was headed "Assert Your Rights." It stated reasons for alleging that any one violated the Constitution when he refused to recognize "your right to assert your opposition to the draft," and went on, "If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain." It described the arguments on the other side as coming from cunning politicians and a mercenary capitalist press, and even silent consent to the conscription law as helping to support an infamous conspiracy. It denied the power to send our citizens away to foreign shores to shoot up the people of other lands, and added that words could not express the condemnation such cold-blooded ruthlessness deserves, &c., &c., winding up, "You must do your share [1] It is argued that the evidence, if admissible, was not sufficient to prove that the defendant Schenck was concerned in sending the documents. According to the testimony Schenck said he was general secretary of the Socialist party and had charge of the Social1st headquarters from which the documents were sent. He identified a book found there as the minutes of the Executive Committee of the party. The book showed a resolution of August 13, 1917, that 15,000 leaflets should be printed on the other side of one of them in use, to be mailed to men who had passed exemption boards, and for distribution. Schenck personally attended to the printing. On August 20 the general secretary's report said "Obtained new leaflets from printer and started work addressing envelopes" &c.; and there was a resolve that Comrade Schenck be allowed $125 for sending leaflets through the mail. He said that he had about fifteen or sixteen thousand printed. There were files of the circular in question in the inner office which he said were printed on the other side of the one sided circular and were there for distribution. Other copies were proved to have been sent through the mails to drafted men. Without going into confrmatory details that were proved, no reasonable man could to maintain, support and uphold the rights doubt that the defendant Schenck was largely instrumental in sending the circulars about. As to the defendant Baer there was evidence that she was a member of the Executive Board and that the minutes of its of the people of this country." Of course the document would not have been sent unless it had been intended to have some effect, and we do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct | ice," and it might be suggested that they the carrying of it out. The defendants do not deny that the jury might find against them on this point. [6] But it is said, suppose that that was the tendency of this circular, it is protected by the First Amendment to the Constitution. Two of the strongest expressions are said to be quoted respectively from well-known public men. It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose, as intimated in Patterson v. Colorado, 205 U. S. 454, 462, 27 Sup. Ct. 556, 51 L. Ed. 879, 10 Ann. Cas, 689. We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 U. S. 194, refer only to making it hard to get volunteers. Recruiting heretofore usually having been accomplished by getting volunteers the word is apt to call up that method only in our minds. But recruiting is gaining fresh supplies for the forces, as well by draft as otherwise. It is put as an alternative to enlistment or voluntary enrollment in this act. The fact that the Act of 1917 was enlarged by the amending Act of May 16, 1918, c. 775, 40 Stat. 553, of course, does not affect the present indictment and would not, even if the former act had been repealed. Rev. St. § 13 (Comp. St. § 14). Judgments affirmed. (249 U. S. 204) FROHWERK v. UNITED STATES. 1919.) No. 685. 205, 206, 25 Sup. Ct. 3, 49 L. Ed. 154. The (Argued Jan. 27, 1919. Decided March 10, most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the 1. CONSTITUTIONAL LAW 90-FREE SPEECH effect of force. Gompers v. Buck's Stove & Range Co., 221 U. S. 418, 439, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right. It seems to be admitted that if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. The statute of 1917 in section 4 (Comp. St. 1918, § 10212d) punishes conspiracies to obstruct as well as actual obstruction. If the act, (speaking, or circulating a paper,) its tendency and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime. Goldman v. United States, 245 U. S. 474, 477, 38 Sup. Ct. 166, 62 L. Ed. 410. Indeed that case might be said to dispose of the present contention if the precedent covers all media concludendi. But as the right to free speech was not referred to specially, we have thought fit to add a few words. [7, 8] It was not argued that a conspiracy to obstruct the draft was not within the words of the Act of 1917. The *words are "obstruct the recruiting or enlistment serv -PROTECTION BY AMENDMENT. First Amendment to Constitution, while pro hibiting legislation against free speech, as such, cannot have been, and obviously was not, intended to give immunity for every possible use of language. 2. CONSPIRACY 28-VIOLATION OF ESPION AGE ACT-NEWSPAPER ARTICLES AS BASIS Articles published in German language newspaper relative to Wall Street's having foreed country into European war, to England's controlling the country, and to the draft as a measure it was excusable to resist, held to furnish basis for conviction of writer, on count charging conspiracy between him and another, both having been engaged in preparation and publication of newspaper, to violate Espionage Act June 15, 1917, § 3 (Comp. St. 1918, § 10212c). 3. CONSPIRACY 28, 43(6)-CONSPIRACY TO OBSTRUCT RECRUITING-ABSENCE OF AGREEMENT ON MEANS. Conspiracy between defendant and another to obstruct recruiting would be criminal, even if no means were agreed upon specifically whereby to accomplish intent; it being enough if which could be accomplished or aided by perparties agree to set to work for common purpose suasion as well as by false statements, although indictment need not allege false reports were intended to be made, or made. 4. CONSPIRACY ←~43(4)—INDICTMENT—ALLEGATION OF INTENT. Indictment for conspiracy to violate Espion age Act June 15, 1917, § 3 (Comp. St. 1919 10212c), by obstructing recruiting, sufficition alleged defendant's intent in stating and another conspired to accomplish i1 by statcomplish it. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests ar object 5. CONSPIRACY 43(5)—VIOLATION OF Es-1219 (Comp. St. 1918, § 10212c). It alleges as PIONAGE ACT OBSTRUCTION OF RECRUITING overt acts the preparation and circulation -INDICTMENT. Under Espionage Act June 15, 1917, 8 4 (Comp. St. 1918, § 10212d), it is sufficient that indictment for conspiracy to violate the law by obstructing recruiting allege overt acts to have been done to effect object of conspiracy. 6. INDICTMENT AND INFORMATION 125(5%) -CONSPIRACY-DUPLICITY OF COUNT. Single count in indictment for conspiring to commit two offenses is not bad for duplicity; the conspiracy being the crime, and single, however diverse its objects. of twelve articles &c. in the said newspaper at different dates from July 6, 1917, to December 7 of the same year. The other counts allege attempts to cause disloyalty, mutiny and refusal of duty in the military and naval forces of the United States, by the same publications, each count being confined to the publication of a single date. Motion to dismiss and a demurrer on constitutional and other grounds, especially that of the First Amendment as to free speech, were overruled, subject to exception, and the 7. ARMY AND NAVY 40-ACTS DENOUNCED defendant refusing to plead the Court orderBY ESPIONAGE ACT. ed a plea of not guilty to be filed. There was The contention that some of the matters a trial and Frohwerk was found guilty on dealt with in Espionage Act June 15, 1917, all the counts except the seventh, which are punishable under the Constitution as trea- needs no further mention. He was sentencsonable, or not at all, and that alleged attempted to a fine and to ten years imprisonment to cause disloyalty, mutiny, and refusal of military and naval duty, denounced by the law, cannot be punished, not being treason, is unsound. Indictment for conspiring to and attempting to violate Espionage Act June 15, 1917, by obstructing recruiting, held not affected by amendment by Act May 16, 1918. 9. CRIMINAL LAW 1151-SETTING TIME FOR TRIAL-DISCRETION OF COURT-REVIEW. Where, before demurrer to indictment for conspiring to violate Espionage Act was disposed of, trial court had ordered jurymen to be summoned to serve for April term, and to report June 25th, as it might, and demurrer was overruled June 24th, and the day following the court ordered plea of not guilty to be entered, a continuance refused, a jury impaneled, and trial set to begin the next morning, and trial judge's discretion is not shown to have been wrongly exercised, reversal is not justified. on each count, the imprisonment on the later counts to run concurrently with that on the first. [1] Owing to unfortunate differences no bill of exceptions is before us. Frohwerk applied to this Court for leave to file a petition for a writ of mandamus requiring the judge to sign a proper bill of exceptions, but a case was not stated that would warrant In Error to the District Court of the Unit-prohibiting legislation against free speech as ed States for the Western District of Missouri. Jacob Frohwerk was convicted of a conspiracy to violate the Espionage Act, and he brings error. Judgment affirmed. * Messrs. Joseph D. Shewalter, of Independence, Mo., and Frans E. Lindquist, of Kansas City, Mo., for plaintiff in error. Mr. John Lord O'Brian, of Buffalo, N. Y., for defendant in error. such cannot have been, and obviously was not, intended to give immunity for every possible use of language. Robertson v. Baldwin, 165 U. S. 275, 281, 17 Sup. Ct. 326, 41 L. Ed. 715. We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever sup posed that to make criminal the counselling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech. [2] Whatever might be thought of the oth Mr. Justice HOLMES delivered the opin- er counts on the evidence, if it were before ion of the Court. us, we have decided in Schenck v. United This is an indictment in thirteen counts. States, that a person may be convicted of a The first alleges a conspiracy between the conspiracy to obstruct recruiting by words of plaintiff in error and one Carl Gleeser, they persuasion. The Government argues that en being engaged in the preparation and on the record the question is narrowed simdouication of a newspaper, the Missouri ply to the power of Congress to punish such ly in. Zeitung, to violate the Espionage Act a conspiracy to obstruct, but we shall take it about. 15, 1917, c. 30, § 3, 40 Stat. 217, in favor of the defendant that the publicaevidence th utive Board her cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *206 |