Before BIGGS and KALODNER, Circuit Judges, and GOURLEY, District Judge.
The appellant, Carl Emil Ludwig Krepper, was convicted, after trial by jury on March 14, 1945, on two separate counts in an indictment drawn under two separate statutes or Acts of Congress.
Count I alleged a violation of Title 50 U.S.C.A. Appendix, § 3(c), a section of the "Trading with the Enemy Act". Count II alleged a violation of Title 50 U.S.C.A. Appendix, § 618, part of the "First War Powers Act, 1941" and dealing specifically with "censorship".
On March 23, 1945, nine days after conviction, the defendant appeared before the Honorable Thomas F. Meaney, United States District Judge for the District of New Jersey, and on each Counts I and II was sentenced to imprisonment for 10 years, said sentences to run concurrently with each other and consecutively with the sentence imposed on said date with Indictment designated as No. 3000c.(We are not concerned directly with Indictment No. 3000c in the issues now before the Court.) The appellant asserts that the conviction should be reversed in that the District Court erred in the following respects:
1. That the Court erred in refusing to dismiss Count II of the Indictment which was based upon an Act not yet in effect.
2. That the Court erred in denying defendant's motion to direct a verdict on the ground that there was no proof to support the allegations of either Count of the Indictment.
3. That the Court erred in denying defendant's motion as to Count I of the Indictment on the ground that as a matter of law the defendant could not be guilty of the offense charged.
4.That the Court erred in refusing to dismiss Count I of the Indictment where an exception appeared in the statute upon which the Indictment was drawn, and where such exception was not pleaded in the Indictment.
5. That the Court erred in striking from each of the two Counts of the Indictment certain phraseology which was included in the Indictment returned by the Grand Jury.
The Court will first refer in some detail to the testimony which was introduced at the time of trial.
It appears that the defendant is married and his wife, a citizen of the United States, had been residing at Budelsdorf, Germany, with the defendant. That on or about the 16th day of December, 1941, the defendant returned from Germany and established a residence at Carteret, New Jersey, with a Mrs. Hilda Frey and her husband. It further appears that the defendant was married to the mother of the husband of Mrs. Hilda Frey, and that Mrs. Bertha Krepper, wife of the defendant, returned to Germany in March of 1941. It appears Mrs. Hilda Frey, prior to the time that the defendant came to her home on or about December 16, 1941, had been accustomed to sending letters to Mrs. Bertha Krepper in Germany, said letters were written directly to Mrs. Bertha Krepper, with address being Budelsdorf, Rensburg, Germany. However, after the defendant came to the home of Mrs. Hilda Frey on or about December 16, 1941, and when the letter involved in this proceeding was written by Mrs. Hilda Frey to Mrs. Bertha Krepper, the address which was placed on the letter was Mrs. Bertha Krepper, c/o Reverend Kloess, Barcelona, Spain. It further appears that said address was secured by Mrs. Hilda Frey from the defendant. That within a week after the defendant established his residence at the home of Mrs. Hilda Frey, while she was engaged in writing a letter to Mrs. Bertha Krepper, the defendant suggested or told Mrs. Frey to make certain comments in the letter to Mrs. Krepper. According to the testimony of Mrs. Frey, the defendant told her to tell Mrs. Krepper in the letter which she was writing that the defendant had arrived safely in the United States, and that the defendant was sending greetings to Pastor Kaiser and some other persons which the witness, Mrs. Hilda Frey, could not remember. The witness, Mrs. Hilda Frey, testified in the first instance that the letter was written within the first week after the defendant returned on December 16, 1941, from Germany, and in another instance that the letter was written on December 19, 1941. The witness, Mrs. Frey, furthermore testified that she placed in the letter any statement that the defendant suggested to her, and that the letter was written in the presence of the defendant. In one part of the testimony Mrs. Frey stated that the defendant told her to send greetings to Pastor Kaiser and some other people, while in other parts of the testimony she stated that independently in her own mind she had no recollection of setting forth in the letter that greetings were sent to Pastor Kaiser, and that the only way that she knew that greetings were sent to Pastor Kaiser in said letter was due to the fact that she wrote in the letter whatever the defendant suggested. That since the defendant had said in a previous trial that the defendant had told her to write the message referred to, to Pastor Kaiser, she must have complied with his request. Furthermore, it appears that the defendant made oral statements and a statement in writing to a member of the Federal Bureau of Investigation pertaining to the letter which contained the statements that resulted in the Indictment being returned against the defendant, which is involved in the matters now before this Court for consideration. At the time of trial the oral and written admissions of said defendant were testified to by an agent of the Federal Bureau of Investigation, and that part of the written admission which was relevant to the issues joined was read into the record, said statement of the defendant being as follows: "The only suggestions I recall making to Mrs. Frey in connection with these letters were made shortly after I arrived in the United States when she wrote a letter sometime in January, February or March, 1942. I, of course, told her to advise my wife that I had arrived safely in the United States, and along with names of other friends in Germany I told her to send my greetings to Pastor Kaiser."
Neither Mrs. Hilda Frey nor the defendant had received any authority from the President of the United States, or the Treasury Department of the United States, to send a letter to Mrs. Bertha Krepper, directly or indirectly, in the Country of Germany. It further appears, from statements made to the agents of the Federal Bureau of Investigation by the defendant, that the defendant stated that "Pastor Kaiser" was a code expression. That it referred to a friend of the defendant in Germany by the name of Walter Kappe. That the defendant had informed his wife before leaving Germany that if the words "Pastor Kaiser" appeared in any of the letters written by the defendant to his wife, it referred to Walter Kappe. The defendant also admitted in his statement that he had an understanding with his wife that if she desired to refer in any of her letters to the defendant about Walter Kappe, she should use the words "Pastor Kaiser". The defendant in his statement admitted that in returning from Germany he traveled through Barcelona, Spain, where he had met a minister by the name of Reverend Ernest Kloess, and that he had arranged with Pastor Kloess to act as intermediary whereby all letters which the defendant would write to Germany, and all letters written from Germany to the defendant would be forwarded to Pastor Kloess, who in turn would send the letters either to the defendant in the United States or the wife of the defendant in Germany, such as the case might be.
Indictment No. 2884c is the Indictment under which the defendant was tried, convicted and sentenced, and which is now before the Court for consideration. It is, therefore, advisable to refer to said indictment in detail.*fn1
The first Count of the Indictment is drawn under the provisions of Title 50 U.S.C.A. Appendix § 3, Paragraph c.*fn2
The second Count of the Indictment is drawn under the provisions of Title 50 U.S.C.A. Appendix § 618.*fn3
On December 15, 1944, said Indictment was returned and on March 9, 1945, counsel for the Government, in the presence of counsel for the defendant, by way of oral motion asked leave of Court to amend Indictment No. 2884c which refers to the date December 19, 1941, by deleting from each of the Counts of said Indictment the phrase "in furtherance of a joint or common scheme or enterprise". Counsel for the Government contended to the Court that such language in the Indictment was surplusage and no reference to such language is contained in the Act under which either Counts of the Indictment were drawn, more particularly Title 50 U.S.C.A. Appendix § 3(c), and Title 50 U.S.C.A. Appendix § 618.
At the time of hearing before the Court on March 9, 1945, pertaining to the matter just mentioned, counsel representing the defendant requested an opportunity to review the Indictment and, as a result of which, Court was adjourned. In the afternoon on the same date, March 9, 1945, counsel representing the defendant stated to the Court that they had reviewed the Indictment and the law, and were, therefore, perfectly satisfied and agreeable that the phraseology "in furtherance of a joint or common scheme or enterprise" be deleted from said Indictment.
The trial on Indictment No. 2884c commenced on March 14, 1945, and on the face of the Indictment in connection with each Count, there appear brackets in a green pencil crayon marking before the word "in" and after the word "enterprise" of the following phrase: "in furtherance of a joint or common scheme or enterprise."
After the Court had completed the charge, the jury had retired and immediately following the retiring of the jury, the Court recalled the jurors and modified the original charge made.*fn4
The Court will, therefore, consider the first assignment of error - Did the Court commit error in refusing to dismiss Count II of the Indictment where Title 50 U.S.C.A. Appendix § 618, was not in effect on December 19, 1941, or under these circumstances could a crime have been committed as charged in Count II of the Indictment?
It is true that Count II of the Indictment charged that the defendant on or about the 19th day of December, 1941, committed certain acts which it was claimed by the Government constituted a violation of the law.
The testimony presented by the Government, more particularly that of Mrs. Hilda Frey, is to the effect that the letter was written by her at the direction of the defendant either during the first week after the defendant returned from Germany and came to her home on December 16, 1941, or on the 19th day of December, 1941; other testimony pertaining to the date of the writing of the letter was contained in the oral and written admissions of the defendant to the representatives of the Federal Bureau of Investigation, in which the date of the writing of the letter was stated by the defendant to be ...