Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; Wm. J. Campbell, Judge.
Before MAJOR, KERNER and MINTON, Circuit Judges.
These defendants were jointly indicted, tried and convicted on a charge of treason. Separate judgments were entered and the defendants have separately appealed. Such appeals have here been consolidated. The defendants Hans Max Haupt, Walter Otto Froehling and Otto Richard Wergin were sentenced to death, and the defendants Erna Emma Haupt, Lucille Froehling and Kate Martha Wergin, each sentenced to imprisonment for a period of twenty-five years and each to pay a fine of $10,000.
The indictment contained one count, and in substance charged the defendants with adhering to the enemies of the United States and giving them aid and comfort, in that the defendants adhered to and gave aid and comfort to a spy for, and secret agent and saboteur of, the government of the German Reich, one Herbert Haupt.
All the defendants were born in Germany but became naturalized citizens of this country. Herbert Haupt was one of a number of saboteurs who were tried before a Military Tribunal in Washington, found guilty, and executed on August 9, 1942. He was the son of Hans Max Haupt and Erna Emma Haupt and a nephew of Walter Otto Froehling, husband of Lucille Froehling. He was not related to Otto Richard Wergin or Kate Martha Wergin.
Herbert Haupt, the alleged agent and representative of the government of the German Reich, came to the United States from Germany and made his appearance in Chicago at the home of the Froehlings on June 19, 1942. On June 27, he was arrested by agents of the Federal Bureau of Investigation (called F.B.I.).
Defendants in their brief state sixty-five contested issues, many of which are subdivided so that in reality the issues relied upon greatly exceed that number. Many of such issues could be readily disposed of as frivolous and without merit. There are a number, however, which raise serious questions concerning the validity of the proceedings and the trial. Most serious are the attack upon the indictment, the admission of statements procured from the defendants, the refusal of the court to allow a severance, and the court's charge to the jury.
The indictment, containing one count, is predicated upon the following statutory provision: "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 treson." 18 U.S.C.A. § 1.
Each of the defendants by demurrer attacked the indictment for improper joinder of parties and offenses, for duplicity in that the defendants in a single count were charged with separate and distinct crimes, and for want of certainty and particularity. The attack is renewed here.
While we do not think it necessary to set forth the indictment verbatim, it appears important to state its essential allegations. After its formal introduction, it alleges that the defendants (naming each of them) " * * * continuously and at all times from June 17, 1942, up to and including July 17, 1942, under the circumstances and conditions and in the manner and by the means hereinafter set forth, then and there being persons owing allegiance to the United States, in violation of their said duty of allegiance, unlawfully, feloniously, maliciously, traitorously and treasonably did adhere to the enemies of the United States, to wit, to the Government of the German Reich, its counselors, armies, navies, agents, representatives and subjects with which the United States, at all times since December 11, 1941, has been at war, and did give to said enemies aid and comfort * * * ." Then follows an allegation as to the date when each of the defendants became a citizen and a resident of the United States. Following this, the allegations concern the status of Herbert Haupt as an agent and representative of the Government of the German Reich.
Briefly summarized, the allegations in this respect are to the effect that Herbert Haupt on or about June 17, 1942 came into the United States and "served the Government of the German Reich as a secret agent, saboteur and spy, in the carrying on of its war with the United States." Such service contemplated, among other things, the destruction of war materials, premises and utilities of the United States, the receipt of money from the German Reich and the disbursement of such money in connection with the procurement, manufacture and use of explosive substances and sabotage devices for the destruction of United States war materials, and the recruiting and hiring of persons to engage in such hostile enterprises against the United States. Further, his services involved the securing and transmitting to the Government of the German Reich information concerning the national defense of the United States, and the employment of persons to assist in securing and transmitting such information. Also, his services involved the making and conveying of false statements and reports, and the employment of other persons to do likewise, so as to interfere with the operation and success of the military and naval forces of the United States.
The indictment then alleges that the adherence of the defendants to the Government of the German Reich, its counselors, armies, navies, agents, representatives and subjects, and the giving of aid and comfort by the defendants to the same, consisted "in their receiving, harboring, relieving and assisting Herbert Haupt, throughout said period of time, including the time from June 17, 1942, to July 17, 1942; in their aiding, abetting, assisting, counseling and advising Herbert Haupt in and concerning said service of said Herbert Haupt to the Government of the German Reich; in their countenancing said service; in their carrying out requests and instructions of said Herbert Haupt in connection with said service; in their giving false information regarding and concealing the identity of said Herbert Haupt, as a representative of the Government of the German Reich, and the mission of Herbert Haupt in the United States; in their receiving, holding, safeguarding and concealing the property and funds of said Herbert Haupt, and in misrepresenting and concealing the ownership of said property and funds, and in their maintaining and supporting the said Herbert Haupt throughout said period of time * * * ."
It is then alleged that the defendants "when so adhering, and giving aid and comfort, to the Government of the German Reich" and its representatives, had knowledge of the status of Herbert Haupt, as theretofore alleged. Further, it is alleged that the defendants in the "prosecution, performance and execution of said treason and of said malicious, traitorous and treasonable adhering and giving aid and comfort," at the several times thereinafter specified "did do, perform and commit among others certain overt and manifest acts." Then follows an enumeration of forty-one overt acts. For the purpose of the present discussion, it seems unnecessary to relate or summarize such acts. It is sufficient to state that some of them are alleged to have been committed by all, some by a portion, and others by individual defendants. By way of illustration, thirtyone of such overt acts are alleged to have been committed by defendants other than Lucille Froehling, and thirty by defendants other than Walter Otto Froehling.
The most urgent attack upon the indictment is that the defendants are improperly joined, especially in a single count indictment. Defendants, in support of their contention in this respect, urge that the indictment shows on its face that they did not participate in, nor have they been charged with, all of the alleged offenses. A number of authorities are cited in support of the well-recognized rule that two or more defendants cannot properly be charged in the same indictment with distinct and several offenses. We need not discuss the rule of such authorities unless it is applicable to the instant situation. Its applicability depends upon a determination as to whether the defendants have been charged with separate and distinct offenses. This in turn depends upon whether the overt acts as alleged charge separate and distince offenses.
We think defendants' contention misconceives the constituent elements of the crime of treason. According to the statutory definition, it consists in either (1) levying war against the United States, or (2) adhering to their enemies, giving them aid and comfort. This statutory definition follows that contained in the Third Article of the Constitution. The Constitution, however, after defining treason, provides: "No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in Open Court." § 3. Upon first reflection, this constitutional requirement might indicate that the overt act constitutes an essential element of the crime, but upon mature study, we agree with the government's contention that such is not the case. Certainly it is not included either in the statutory or constitutional definition.
The indictment charges the defendants, in the language of the statute, with "adhering to their enemies, giving them aid and comfort." The character of such adherence, aid and comfort, as well as the status of Herbert Haupt as an enemy representative and defendants' knowledge thereof, are meticulously and fully described. They are, perhaps, described in more detail than necessary. Without alleging any overt act, the crime of treason was thus charged.
The constitutional requirement "of two Witnesses to the same overt Act" forms no part of the definition of the offense. It relates solely to the proof required before a conviction can be had. The crime itself may be established in the same manner as any other crime, but before there can be a conviction, an act in its promotion must be established by two witnesses. In other words, the two-witness provision of the Constitution is an evidential requirement prerequisite to conviction. Moreover, the constitutional requirement "of two Witnesses to the same overt Act" appears to be an implied recognition that there may be more than one act committed in the execution of the offense. Otherwise, use of the word "same" would seem to be superfluous.
Since the overt acts constitute no part of the crime, it follows that only one offense is charged. In both United States v. Fricke, D.C., 259 F. 673, and Stephan v. United States, 6 Cir., 133 F.2d 87, the courts held good an indictment which charged a number of overt acts in the same count. It may be, as claimed by the defendants, that the question of misjoinder was not raised in those cases, but the validity of the indictment, in form quite similar to that of the instant case, was expressly sustained in the Stephan case. As the indictment charges only the single offense of treason, we see no reason why the defendants could not properly be jointly charged with its commission. Also, a single offense being charged, the indictment is not bad for duplicity. There is no merit in the contention that it is bad for want of certainty or particularity.
Defendants stress the danger inherent in being required to plead to such an indictment. The argument as to the difficulty of obtaining a fair and impartial trial under such circumstances is not without merit. This difficulty is emphasized from the fact that a large number of overt acts are alleged to have been committed by only some of the defendants. We are of the view, however, that this argument is not properly directed at the legality of the indictment. This is so for the reason that the court is empowered to prevent an injustice of this character by severance or other means at its disposal in the conduct of the trial.
The treasonable acts were alleged to have been committed during the period subsequent to the arrival of Herbert Haupt in Chicago, up to and including a few days after his arrest. All of the defendants were interviewed by F.B.I. agents on numerous occasions and all, at one time or another, were taken into custody by such agents. Numerous written statements or confessions were obtained, fourteen of which were introduced in evidence at the trial. Four of such statements were made by Hans Max Haupt, four by Erna Emma Haupt, three by Walter Otto Froehling, two by Lucille Froehling, and one by Otto Richard Wergin. A statement procured from Kate Martha Wergin was not offered. The record does not disclose definitely when the defendants or any of them were taken before a United States Commissioner or a committing officer. From statements made in oral argument, however, it appears that none of them were taken before such officer until about August 1, 1942. It is certain that none were taken before an officer until several weeks after such statements were procured.
This brings us at once to the important question as to whether statements, thus procured, were properly admitted. Under the circumstances, we think there is no occasion to set forth their voluminous contents. By leave of court, they were not included in the bill of exceptions but have been certified as original exhibits. As pointed out by the government, some are merely exculpatory in nature. Where such is the case, however, later statements made by the same defendant were highly incriminating. Not only were they incriminating as to the defendant who made the statement, but also as to other defendants, although the jury was told by the court, both at the time of their admission and in its charge to the jury, that they were to be considered only against the defendant making the statement or confession. For the purpose of the question we must now decide, it is sufficient to state that there is no doubt but that their contents, taken as a whole, were highly prejudicial and, if improperly admitted, necessitate a reversal.
The defendants contend that these extrajudicial admissions were improperly admitted under the authority of two recent decisions of the Supreme Court, McNabb et al. v. United States, 318 U.S. 332, 63 S. Ct. 608, 87 L. Ed. , and Anderson et al. v. United States, 318 U.S. 350, 63 S. Ct. 599, 87 L. Ed. , both decided March 1, 1943. The government contends that these cases are not controlling for the reason that each of the defendants freely and voluntarily executed a written waiver of custody and, as a result thereof, waived the right to be taken before a committing officer. Before considering the McNabb and Anderson cases, it appears pertinent briefly to summarize the facts in connection with the procurement of such statements. Such summary is taken largely from the government's brief.
Hans Max Haupt was taken into custody and to the headquarters of F.B.I. agents on June 28, at about 5 p.m. There he was questioned until 1:45 a.m. the following morning, when he signed his first statement. The questioning was not continuous, as some of the time was spent by Haupt in eating and some of it by the agents in typewriting the statement which he made. On June 29, he was again questioned by the agents and the second statement was procured. The time consumed on this occasion was about two hours. On June 30, 1942, he was interrogated for some two and one-half hours, when an agent commenced the dictation of material furnished by Haupt, which dictation continued for some four and one-half hours. After completion of the dictation, it was transcribed into typewritten form, which was completed at about 10:30 p.m. It was then read and signed by Haupt. This was the third statement procured from him.
In the early morning of July 1, 1942, Haupt was taken to and placed in a cell of the village jail at Winnetka, Illinois, a suburb of Chicago. On the evening of July 1, 1942, at about 8 o'clock, he was again interrogated by the agents. This is referred to by the government as a conversation with the agents, and continued until about 11:30 p.m. As the agents who participated in this conversation were not familiar with the case, an agent who was familiar was called. This agent arrived about midnight, and after some conversation with Haupt, the latter was taken to the office of the Chief of Police where the interrogation continued until about 1 a.m. July 2. About that time another agent arrived, who continued the interrogation until 2:30 a.m. Again the information furnished was dictated to a stenographer in the presence of Haupt and was finished about 5 a.m. Haupt was then taken to his cell to sleep while the dictated statement was being typed. This was completed about 8:30 a.m., when Haupt was again taken from his cell to the office of the Chief of Police where the statement was read to and signed by him. This was the fourth statement procured from him.
Erna Emma Haupt was questioned by agents at her home on June 28, 1942, and the first statement was procured. We are unable to ascertain how long she was questioned at this time, but it appears that she signed the statement at about 9:30 p.m. On June 30, she was questioned by agents from 11:30 in the morning until 4 o'clock in the afternoon, with some interruptions. A statement was prepared by the agents which Mrs. Haupt refused to sign, although she admitted, according to the testimony of the agents, that the contents of the statement were true. This unsigned statement was one of those admitted in evidence. On July 1, she was placed in the custody of F.B.I. agents, although permitted to remain at home. On that day, she was attended by a physician and arrangements were made for a nurse to care for her, although she did not appear to be nervous or ill, according to the testimony of the agents. Also on this day, a third statement was procured. On July 3, she was taken to the headquarters of the F.B.I. There she was locked in a detention cell, where she was furnished with a frock and ...