Full opinion text
EVANS, Circuit Judge. Hans Max Haupt was tried and convicted on an indictment which charged him with the crime of treason. It was his second trial and his second conviction, on a charge of treason. The death sentence on the first trial was reversed on appeal. 7 Cir., 136 F.2d 661. On this conviction on a second indictment, the trial judge sentenced him to imprisonment for life and to pay a fine of $10,000. Giving Aid and Comfort to a war enemy, the German Reich, in June, 1942, by harboring and assisting its agent, Herbert Haupt, was the heart of the charge. Herbert was the son of the defendant. Herbert and his comrades came to this country, in June, 1942, in a German submarine, landed on the Florida coast, cached their supplies on the beach, and dispersed to their various assignments. Herbert was later executed pursuant to the judgment of the military tribunal. See Ex Parte Ouirin, 317 U.S. 1, 63 S.Ct. 1, 2, 87 L.Ed. 3. The story of this German war stratagem is quite fully stated in the opinion of this court in 7 Cir., 136 F.2d 661, and more particularly in the decision of the Supreme Court in 317 U.S. 1, 63 S.Ct. 1, 2, 87 L.Ed. 3. See also Cramer v. United States, 325 U.S. 1, 65 S.Ct. 918. In Ex Parte Quirin, supra, the Supreme Court disposed of a case where the trial by a military commission, of the German saboteurs, who were the members of the expedition of whom Herbert was one, was reviewed. We refer to those opinions for a factual background and thereby avoid repetition. The story is one of great hazard and audacity. The venture had for its objectives the destruction of the aluminum plants in the United States, as well as other vital industries, also our transportation systems. This was to be accomplished through the use of high power explosives, made in German war plants. The participating parties had, for the most part, lived in the United States. They had been thoroughly trained as expert saboteurs to do widespread damage to places, people and plants where such damage would most effectively cripple the United States in the then existing World War. Their devotion to German Naziism was suicidal in its intensity. In the instant case, there was a lengthy trial before a court and jury. The evidence came from F. B. I. investigators, the fiancee of the son, the jail-mates of the defendant in the County Jail in the summer of 1942, and co-workers and employers of defendant. It also came from co-members in various German associations, particularly from members of the Veterans of the German Army in World War I, of whom defendant was one. Defendant did not take the witness stand. His wife testified, but her testimony was brief and unimportant. Upon the rendition of the verdict, the trial court made an earnest, sincere statement explanatory of his sentence of life imprisonment instead of death — on the basis of a recommendation of mercy given by the jury in the form of a letter received after verdict. The usual pleadings in criminal cases were filed by defendant, namely, demurrer to the indictment, motions for directed verdict, for new trial, exceptions to instructions, objections to evidence, etc. Defendant, Hans Max Haupt, was born in Germany in 1894. His son, Herbert, the saboteur, was also born in Germany, in 1919. Defendant came to this country in 1923, and his wife and son followed two years later. Defendant, in this country, worked as a painter, decorator and bricklayer by trade. He also worked with his wife as a “couple” in a Chicago suburb. Herbert had worked for the Simpson Optical Company, and was being trained as an optical worker. In the midst of the training, Herbert and Wolfgang Wergin, a friend, took a trip to Mexico, leaving Chicago in June, 1941. Eventually they reached Tokyo, and finally Germany. In Germany, Herbert attended a school, military in character, devoted to training saboteurs. The soldiers attending were taught the use of explosives, how to place them and to fire them, and to avoid detection, etc., and they were also taught the arts commonly practiced by spies, etc. One of Herbert’s classmates and co-actors on this bold and fanatical expedition, Ernest Peter Burger, detailed their training, and what is more important — their mission to this country. He stated that Herbert “received orders to procure an automobile and put this automobile to, the disposal of our group.” “He also received orders to procure information and details concerning the optical industry in Chicago, especially of the Norden bomb sight, and furnish information which was * * * to equip us to carry out our assignments.” The automobile was to be used to transport the explosives from the cache where hidden and to give “range to the operations.” Herbert was ordered to go directly to Chicago. When the schooling and instructions in Germany were completed, the expedition, composed of two units of four men each, was outfitted with explosives and other equipment, with large sums of money, and embarked for the United States on German submarines. One of the submarines, on which Herbert was a passenger, landed in Florida. They went ashore and Herbert participated in burying the equipment in the beach. He then came to Chicago. Herbert received $5,000 which he carried in his money belt and $400 in smaller bills. He was also given a zipper bag of which he was told to take particular care, for it contained $10,000. Upon arrival in Chicago Herbert went to the home of a relative, and his parents were summoned there by phone. They evidently had no prior notification of his coming and were surprised at seeing him. Herbert related to his parents, his travels from Chicago to Germany, and his mission to this country. Herbert thereafter went to his parents’ home where he stayed the week of June 22. His father went with Herbert on two successive evenings to an automobile agency to effect the purchase of a Pontiac car. His father (and mother) also went one evening to the home of one Grunau, and later to the home of one Koch, both foremen at the Simpson Optical Company, where Herbert asked to be reinstated in his former position at that company. It is upon these activities that the overt acts of treason alleged in the indictment, and submitted to the jury, were predicated. Herbert was seized by Government officials on Saturday morning, June 27. Proof of treason necessitates the testimony of two witnesses to at least one legally sufficient overt act. Treason is a crime defined by the Constitution rather than by statute. The Constitution (Article III, Section 3, clause 1) reads: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. 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.” Defendant's attack on the validity of the judgment is most vigorously and extensively directed at the overt acts, their sufficiency, -their proof and the judge’s charge to the jury in respect to them. Numerous other assignments are made and earnestly-argued. But the attack on the overt acts appears to be the most confidently asserted one and the one most extensively argued. The decision of the majority of the court in the recently decided case of Cramer v. United States, supra, doubtless accounts for defendant’s chief and confident reliance for his extended attacks on the overt acts rulings, although some of the other assignments of error would have been quite as impressive with counsel as they are with us, were it not for the ruling in the Cramer case. We here set forth the various assignments of error which the defendant presents : 1) The acts charged do not constitute the crime of treason. 2) The submitted overt acts were colorless and innocuous and not treasonable in nature. 3) The duplicitous indictment charged many offenses, even of different criminal classification. 4) Denial of motion to quash indictment because of pendency of prior treason indictment, the conviction under which this court reversed and remanded with directions for new trial. 5) Denial of bill of particulars, seeking details of how the son was to be assisted in obtaining employment; and in what manner and by what acts the son was harbored ; in what manner the son would be aided in carrying out his mission in purchasing a car. 6) The evidence of statements made up to six years prior to the time of the overt acts, to show intent (much of it pre-war conversations) ; statements and admissions made while in custody, were inadmissible, not being made in open court; admission of evidence of conversations occurring outside presence of appellant; improper examination and intimidation of witness Zermer; improper for the Government to prove by but one witness overt acts which they knew could not be submitted because not provable by two witnesses; evidence as to withdrawn overt acts should not have been introduced or submitted to jury. Overt acts 1-9, 18, 19, 25-29 were not supported by two witnesses and it was improper to use any evidence relating to any such acts to obtain a conviction upon any overt act submitted to the jury. 7) Court improperly received in evidence highly prejudicial exhibits without requir- ing that they be first connected up with the deiendant. 8) Court improperly refused to receive in evidence copy of Ill.Stat. relating to accessories after the fact, which it is contended is receivable in a Federal trial where not inconsistent with Federal statute or constitution. 9) Court should have directed verdict of not guilty because of insufficiency of evidence to support charge of overt acts submitted ; there was error in overruling motion for new trial, also motion in arrest of judgment. 10) Errors occurred in 21 instructions which were given and in refusal to give 15 proffered instructions. In particular the court’s charge failed to impress upon the jury the fact that acts done solely to aid his son as an individual did not constitute treasonable action. 11) Error to send to jury the entire indictment containing many prejudicial statements, in particular the unsubmitted overt acts. 12) Error to send to jury room the typewritten copy of instructions thereby accentuating errors therein. 13) Government counsel’s argument was prejudicial, inflammatory and appealing to war hysteria. 14) The verdict was the result of war hysteria and misapprehension of the law and facts because of erroneous instructions ; the verdict was induced by physical exhaustion of the jury in deliberating 28' hours without sleep; and was the result of the improper reading of the testimony of three witnesses’, at the request of the jury,. 24 hours after submission of the case to them. 15) The general verdict cannot be sustained, if any specific overt act or its proof were insufficient. There was insufficiency of proof both as to overt acts submitted and overt acts withdrawn. The court cannot say on which of the alleged overt acts-the jury found against the defendant. A study of the entire record leaves us-with the impression that the trial was conducted in a manner such as to impart confidence in the fairness and the earnestness of the effort of the court to accord the defendant every right which our laws extend to all, regardless of the nature of the crime charged, or the strength or weakness of the evidence which the accused might offer. It was no doubt unfortunate that the trial occurred before the decision in Cramer v. United States, supra, and the trial judge did not have the benefit of the discussion which appears in the opinions in that case. Concededly there must be direct proof, by two witnesses, to each overt act, submitted to a jury, upon whose general verdict the sentence in a treason case is pronounced. There may be overt acts of legal sufficiency and established by the direct testimony of two witnesses, but the conviction will fall if the court submitted to the-jury certain alleged overt acts which were charged in the indictment but which were either legally insufficient or not sufficiently established to present a jury question, by the direct testimony of two witnesses. The holding of the court in the Cramer case may make conviction in treason cases difficult. It may in actuality make treason a theoretical crime, a paper crime, but we have no alternative but to follow the law as there announced by the Supreme Court. True, the prosecution might have withdrawn several of the alleged overt acts charged in the indictment. It did in fact withdraw over half of them. It could have withdrawn more and made its conviction less vulnerable to the many attacks which defendant makes to the evidence, instructions, etc., thereon. Doubtless counsel for Government believed they were trying a real case, not toying with a theoretical or supposititious one. They were confronted by actualities, not a theory. They were not preparing the facts for an interesting detective story. It was treasonable action with which they were dealing, and the overt acts and the two witness rule provoked a full and complete presentation of the facts, not cautionary action inspired by a fear of error in the charge or the production of evidence. Perhaps a special verdict where the jury would be required to pass on each overt act separately would have helped some. Even then additional questions interrogating the jury as to each overt act found to be established would, we believe, be necessary to avoid the multitude of questions which astute counsel has raised although some of them are not worthy of serious consideration. Defendant asserts that there are numerous overt acts alleged, and which were submitted to the jury but which had not the testimonial support of two witnesses. The law being as announced in the Cramer case, it is our duty to carefully examine the long record here involved and determine if the requisite constitutional measure of proof was adduced by the Government. In performing this task, we have, as 'we read the respective witnesses’ testimony, recorded the evidence relevant to any submitted overt act, to the said overt act to which it appertains. Because of the indispensability of such proof on one theory which has been advanced by government counsel, as to each overt act submitted we set forth such evidence and overt acts seriatim. The indictment charged 29 overt acts. Only 12 were submitted to the jury. The others were withdrawn as overt acts. Generally stated, six of the submitted overt acts charged harboring of the son for six successive days from June 22 to June 27, inclusive; two charged accompanying the son to the respective homes of former employers to secure re-employment; and the remaining four charged accompanying and assisting the son in the purchase of an automobile. The overt acts submitted to the jury were numbers 10 to 17 and 20 to 23, both inclusive. We therefore begin with overt act No. 10. Overt Act No. 10. “Said Hans Max Haupt, on or about June 22, 1942, accompanied said enemy, Herbert Haupt, to the home of Andreas Conrad Grunau, 6361 Leoti Ave., Chicago, Illinois, for the purpose of assisting the said Herbert Haupt in securing employment so that the said enemy might conceal his identity and mission as an agent of the German Reich and be permitted and enabled to carry out and pursue his said mission.” Concerning this Act No. 10, eight witnesses, including Mr. and Mrs. Grunau, testified. They testified to Mr. and Mrs. Haupt and Herbert leaving the Haupt residence, getting into the Plymouth car, with Herbert driving, but exchanging seats with his father, after a few blocks, and the father driving them to the Grunau home, where they all alighted, met with the Grunau women folk, and entered the Grunau home. Mr. and Mrs. Grunau both testified to Herbert’s asking for his position back with the Simpson Optical Co., and Mr. Grunau told Herbert to come down on Thursday to fill in an application. The Grunaus’ daughter testified to the visit of the Haupts that evening. The remaining testimony dealt with the Haupts’ driving away, after having been at the home for an hour or an hour and a half (Mr. Grunau had come in after the Haupts had arrived). Mr. Haupt drove the car on leaving the Grunau residence. The verbatim testimony in support of this brief fact statement is set forth below. Overt Act No. 11. This charge is: “Said Hans Max Haupt, on or about June 22, 1942, accompanied the said Herbert Haupt to the home of Heinrich Koch, 7240 N. Odell Ave., Chicago, Illinois, for the purpose of further assisting said enemy-in procuring employment, so that he might conceal his identity and mission as an agent of the Government of the German Reich and be permitted and enabled to carry out and pursue his said mission.” The evidence of five witnesses, including Mr. and Mrs. Koch, on this count, disclosed the fact that the Haupts, with the father driving left the Grunau residence and drove to the Koch home, arriving there about 9:30. Mr. Koch is the Shop foreman and supervisor for Simpson Optical Company, under whom Herbert had worked in his prior employment there. Herbert asked for re-employment. The visit lasted about an hour, when the trio emerged, with Hans driving the car, to the Haupt home. The specific evidence in point is set forth below. Overt Act No. 12. Overt Act No. 12 is charged in the indictment in this language: “Said Hans Max Haupt, on or about June 22, 1942, harbored and sheltered the said enemy Herbert Haupt at the home of Hans Max Haupt and Erna Haupt, 2234 N. Freemont ' St., Chicago, Illinois, well knowing that the said enemy was an agent of the Government of the German Reich in the United States to commit sabotage, act as a spy and perform other services for said Government as aforesaid, all with the intent and for the purpose of assisting said enemy Herbert Haupt in carrying out his mission as an agent of the Government of the German Reich as aforesaid.” The evidence on this, as well as some of the other “harboring” acts submitted, consists simply of F. B. I. agents testifying they saw the several Haupts enter or leave the front entrance of the 2234 N. Fremont Avenue apartment building. The legal sufficiency of this evidence as “direct” or “circumstantial” will be subsequently discussed. Mr. and Mrs. Kluczyk, the landlord and his wife, who lived on the first floor of the three story building (which also had three apartments in the rear, not reachable by the front entrance) testified that on the evening of the twenty-second, Mr. and Mrs. Haupt and Herbert came to pay a brief call and in answer to the question where Herbert had been, was told Herbert had been to Mexico, South America, and “all over.” Mrs. Kluczyk had seen Mrs. Haupt talking to Herbert out on the sidewalk, in the morning. Several of the F. B. I. agents saw all the Haupts enter the apartment building and testified to the condition of the Haupt apartment lights on entry, and shortly after entry, as indicative of occupancy by them shortly after entry. The precise evidence on this Overt Act is also set forth below. Overt Act No. 13. The specific wording of Overt Act No. 13 was: “Said Hans Max Haupt, on or about June 23, 19-12, accompanied the said enemy Herbert Haupt to the Warner Motor Sales, 958 Diversey Park Way, Chicago, Illinois, to arrange for the purchase of an automobile for the said enemy Herbert Haupt, with the purpose and intent of assisting the said enemy in carrying out his mission as an agent of the Government of the German Reich as aforesaid.” The testimony to support this overt act is that of four F. B. I. agents who were watching the Haupt movements stated they saw them leave the Haupt residence, go to a restaurant, and thence to the Warner Motor Sales, driving in the Plymouth car. They were seen to remain in the sales room for thirty-five or forty minutes, then leave together in the Plymouth car and drive back to the Haupt residence. The evidence is outlined below. Overt Act No. 14. This overt act is couched in these terms : “Said Hans Max Haupt on or about the 23rd day of June, 1942, while at the Warner Motor Sales, 958 Diversey Park Way, Chicago, Illinois, signal a financial statement and an order for the purchase of an automobile and made an initial payment of money toward the purchase of said automobile, with the intent and for the purpose of procuring an automobile for the said enemy, Herbert Haupt, and with the intent and for the purpose of assisting the said enemy, Herbert Haupt, to carry out his mission as an agent of the German Reich, as aforesaid, and to conceal the identity of Herbert Haupt as such agent.” The evidence on this overt act is that T>f two witnesses, a salesman, Vincent Farrell, who greeted Hans and Herbert Haupt when they came in and informed him Hans wished to purchase a good used car for his son Herbert. Upon their inquiry, he gave them the cost, the terms of sale, the amount of down payment, the credit arrangement. During the progress of the negotiations, Mr. Phillip Vinson, the general manager, came in and was introduced lo the Ilaupts. He OKed the arrangements, saw the deed signed by Mr. Haupt, the credit statement was taken and signed in his presence. The testimony of these two witnesses is summarized below. Overt Act No. 15. The 15th overt act is charged in this language: “Said Hans Max Haupt on or about June 24, 1942, again accompanied the said enemy Herbert Haupt to the Warner Motor Sales, 958 Diversey Parkway, Chicago, Illinois, to complete the arrangements for the purchase of an automobile for the said enemy with the intent and purpose of assisting said enemy in carrying out his mission as an agent of the German Reich, as aforesaid.” Two F. B. I. agents who were covering the actions of the Haupts testified to seeing the father and son leave the Haupt residence and drive to the Warner Motor Sales Company on June 24, remain there awhile, and then they saw Herbert drive away from the auto company in a Pontiac coupe. Mr. Haupt had driven them to the auto company in a Plymouth car. The testimony of these two agents is outlined below. Overt Act No. 16. The next overt act of the indictment, submitted to the jury, was: “Said Hans Max Haupt on or about the 24th day of June, 1942, while at the Warner Motor Sales, 958 Diversey Parkway, Chicago, Illinois, made a further payment in cash toward the purchase of an automobile for said enemy Herbert Haupt and completed arrangements for the purchase of said automobile and did purchase said automobile for said enemy Herbert Haupt with the intent and for the purpose of assisting said enemy Herbert Haupt in carrying out his mission as an agent of the German Reich, as aforesaid.” The salesman and the general manager of the auto company were the same two witnesses to the car transactions on the second day, June 24th. The salesman handled the transaction, the general manager saw them come in, he received the money paid, saw Mr. Hans Haupt’s name on the note, and saw the invoice that evening. In detail this evidence is given in the margin. Overt Act No. 17. This act, charging harboring on June 23, reads: “Said Hans Max Haupt, on or about June 23, 1942, harbored and sheltered the said enemy Herbert Haupt at the home of Hans Max Haupt, 2234 N. Fremont Street, Chicago, Illinois, well knowing that the said enemy was an agent of the Government of the German Reich in the United States to commit sabotage, act as a spy and an enemy agent and perform other services for said Government as aforesaid, all with the intent and for the purpose of assisting said enemy Herbert Haupt in carrying out his mission as an agent of the Government of the German Reich as aforesaid.” This overt act was proved by two witnesses who saw the father and son come into the apartment — these witnesses were actually in the home of defendant. Four other witnesses, F. B. I. agents, gave evidence of entry into the apartment building; and exit therefrom after lengthy intervals, of the defendant and his son. Overt Act No. 20. This overt act charged the harboring and sheltering of Herbert Haupt, in substantially the same language as Overt Act No. 17, just quoted, except that said act concerned June 24, 1942. The proof on this overt act was the testimony of four F.B.I. agents who related the times they saw the defendant and Herbert entering and leaving the premises of the Haupt residence, and also the testimony of the landlady who saw the mother and son outside the building, walking away from the building. Overt Act No. 21. This overt act alleges “harboring” of the agent of the German Reich in the same language as the other harboring counts, except it concerns June 25, 1942. As to this day ten F. B. I. agents testified they saw Herbert enter and/or leave the Haupt building; one other person also so testified. They testified that an existing light in the Haupt apartment was extinguished a few minutes after entry into the building; also, that upon exiting, Herbert was wearing different garb than when he entered. Overt Act No. 22. This is another “liar-boring” charge, and covers June 26, 1942. Its language is similar to the foregoing, On this charge, four F. B. I. agents testified to seeing Herbert Haupt enter, or leave the premises of the defendant’s home, that he had different clothes on upon leaving than when entering; one testified he saw him on the stoop of the apartment building. Overt Act No. 23. The final act submitted to the jury is also a “harboring” accusation, in similar terms as the other harboring charges, except that it deals with the day of June 27, 1942. Five F. B. I. agents testified to the entering and leaving of the building by Herbert Haupt. . It would seem inexcusable to set forth the lengthy statement of witnesses which supports or tends to support the numerous so-called overt acts. We feel like apologizing therefor. Yet, on the theory advanced by the defendant’s counsel we have found no way to avoid it. The errors assigned deal not only with the legal sufficiency of the acts and deeds of the defendant but also with the sufficiency of the evidence to establish or make a jury question as to whether two witnesses proved all of them and by direct testimony. He also assails the instructions given by the court to the jury in respect to said overt acts and the necessity of proving all of them. Sufficiency of Proof of Overt Acts, by Two Witnesses. (A) The Overt Acts as to Harboring. Overt Acts 12, 17, and 20-23, charged harboring each of the successive days from June 22 to June 27. As to several of these days there was simply the testimony of F. B. I. agents that they saw the saboteur, Herbert, and his father leaving and going into the front entrance of the six-apartment building wherein the Haupts lived. Counsel for defendant strenuously argues that there is no “direct” proof that Herbert was actually in the Haupt apartment, the F. B. I. testimony being circumstantial proof. This argument is drawn from the language in the Cramer case [325 U.S. 1, 65 S.Ct. 932] : “While to prove giving of aid and comfort would require the prosecution to show actions and deeds, if the Constitution stopped there, such acts could be inferred from circumstantial evidence. This the framers thought would not do. So they added what in effect is a command that the overt acts must be established by direct evidence, and the direct testimony must be that of two witnesses instead of one.” In our opinion the testimony of persons who saw the son enter the front entrance which led to the front three apartments of the six apartment building, on the third floor of which the defendant-father lived, saw lights either go on or off in the third floor apartment soon after entry of the persons, saw the son emerge in different garments than that in which he entered that same entrance some time before; saw the son leave many hours after having entered —is direct testimony that said son was being quartered in the father’s home. To call such evidence circumstantial, rather than direct, is the extreme of tenuity. Such was not the protection intended to be accorded by the Constitution to one charged with treason, when it required the testimony of two witnesses to the same overt act. It is worthy of passing note that it is the decision in the Cramer case, not the definition found in the Constitution, which adds the necessity of “direct evidence.” We must, however, and do follow the court holding. Sufficiency of Proof as to other Overt Acts. (B) The Automobile Transactions. Overt Acts 13 to 16 covered the automobile transactions. Two of the acts charged accompanying by the defendant, of the son, to the auto sales agency. Two charged the signing of the financial statement, making initial payment, and the further payment on the car. The proof of accompanying is also by F. B. I. agents, as well as of the two men in the agency. There can be no doubt that two witnesses testified to the father’s going with the son to the agency; nor that he signed the statement, nor that he handed over the cash. Counsel for defendant argues that there were not two witnesses to the financial aspects of the transaction, that the deal was handled by the salesman, and the manager came in later, or was at some distance from the parties at the time of the negotiations. A careful reading of the testimony of Mr. Vinson, discloses that he was cognizant of the whole transaction, had met the father and son, had been consulted by the salesman as to whether the price were satisfactory (having been reduced by the salesman) ; he talked with them about the preliminary bill of sale; it was signed in his presence by the father; the credit statement was made in his presence. As to the next evening (June 24) the manager had no conversation with the father and son, but he saw them come in, he stated “we” receipted for the down payment, and he received the money which had been put down, saw Hans Haupt’s name on the note, and saw the invoice. To discount testimony of the manager as above outlined as not direct support for the charge of the overt act that “Hans * * * while at the Warner Motor Sales * * * made a further payment in cash towards the purchase of an automobile for said enemy Herbert Haupt and completed arrangements for the purchase of said automobile and did purchase said automobile for said enemy Herbert Haupt” would seem to us ludicrous — were this not the serious charge of treason. Sufficiency of Proof as to Third Group of Overt Acts, To-wit 10 and 11. (C) Accompanying Herbert to Regain Employment m Simpson Optical Co. These Acts charged the father with “accompanying” the son to the homes of two persons influential in the company for the purpose of assisting Herbert in seeking reemployment. There is no doubt that the father did accompany the son to these homes, that he was present when the son asked for re-employment, sometimes volunteered information as to the son’s whereabouts in the interval since he left the employ of the company, or that the son had now registered for the draft, etc. This was established by the testimony of two witnesses. There can be no doubt the father’s (and mother’s) presence lent an air of respectability (and moral support) to the son’s application — gave the impression that here was a returned traveller now ready to renounce farflung adventure (digging for gold) and settle down to the serious business of making a living. Legal Sufficiency of the Overt Acts Charged. Introductory. The Cramer case supplies many markers of the legal attributes of a treasonable overt act. Alas, not all of them contribute to clarity of understanding. Still they are our guides. We quote therefrom: "Of course the overt acts of aid and comfort must be intentional as distinguished from merely negligent or undesigned ones. * * * he must intend to betray his country by means of the act. * * * "Actions of the accused are set in time and place in many relationships. Environment illuminates the meaning of acts, as context does that of words. What a man is up to may .be clear from considering his bare acts by themselves; often it is made clear when we know the reciprocity and sequence of his acts with those others, the interchange between him and another, the give and take of the situation.” “From duly proven overt acts of aid and comfort to the enemy in their setting, it may well be that the natural and reasonable inference of intention to betray will be warranted. * * * “The very minimum function that an overt act must perform in a treason prosecution is that it show sufficient action by the accused, in its setting, to sustain a finding that the accused actually gave aid and comfort to the enemy. * * * “It may be that in some cases the overt acts, sufficient to prove giving of aid and comfort, will fall short of showing intent to betray and that questions will then be raised as to permissible methods of proof that we do not reach in this case. But in this and some cases we have cited where the sufficiency of the overt acts has been challenged because they were colorless as to intent, we are persuaded the reason intent was left in question was that the acts were really indecisive as a giving of aid and comfort. When we deal with acts that are trivial and commonplace and hence are doubtful as to whether they gave aid and comfort to the enemy, we are most put to it to find in other evidence a treacherous intent.” All of the acts charged in this indictment could have been innocent acts. Parents house their adult children; they buy them cars; they help them seek employment. But such children are rarely enemies. Yet even performance of the accused acts for an enemy-child might not establish treason. The setting for the overt acts, i.e., the father’s knowledge of the enemy-son’s mission with specific instructions to acquire a car to effectuate the mission’s objects, to gain rc-employment to obtain knowledge of the Norden bomb sight and plans of the Simpson Company, — it is this setting which transforms the innocent into the sinister. We believe the defendant is laboring under one fundamental misapprehension of the Cramer case — that we may not take extraneous evidence, allegedly by one witness alone, to breathe traitorous design into seemingly innocuous acts. He relies on this statement taken from the Cramer opinion: “Every act, movement, deed, and word of the defendant charged to constitute treason must be supported by the testimony of two witnesses. The two-witness principle is to interdict imputation of incriminating acts to the accused by circumstantial evidence or by the testimony of a single witness. The prosecution cannot rely on evidence which does not meet the constitutional test for overt acts to create any inference that the accused did other acts or did something more than was shown in the overt act, in order to make a giving of aid and comfort to the enemy.” (Latter italics ours.) We do not construe this quotation to deny the right to prove by extraneous evidence the intent with which the very acts charged were done. Quite shortly after the above quotation, the court says: “It may be that in some cases the overt acts, sufficient to prove giving of aid and comfort, will fall short of showing intent to betray and that questions will then be raised as to permissible methods of proof that we do not reach in this case. But in this and some cases we have cited where the sufficiency of the overt acts has been challenged because they were colorless as to intent, we are persuaded the reason intent was left in question was that the acts were really indecisive as a giving of aid ,and comfort. When we deal with acts that are trivial and commonplace and hence are doubtful as to whether they gave aid and comfort to the enemy, we are most put to it to find in other evidence a treacherous intent.” We think the earlier language in the same opinion is of prime importance in construing the legal requisites of proof of intent to betray. The court says: “Bearing in mind that the constitutional requirement in effect is one of direct rather than circumstantial evidence, we must give it a reasonable effect in the light of its purpose both to preserve the offense and to protect citizens from its abuse. What is designed in the mind of an accused never is susceptible of proof by direct testimony. If we were to hold that the disloyal and treacherous intention must be proved by the direct testimony of two witnesses, it would be to hold that it is never provable. It seems obvious that adherence to the enemy, in the sense of a disloyal state of mind, cannot be, and is not required to be, proved by deposition of two witnesses. “Since intent must be inferred from con.duct of some sort, we think it is permissible to draw usual reasonable inferences as to intent from the overt acts. The law • of treason, like the law of lesser crimes, assumes every man to intend the natural consequences which one standing in his circumstances and possessing his knowledge would reasonably expect to result from his acts. Proof that a citizen did give aid and comfort to any enemy may well be in the circumstance sufficient evidence that he adhered to that enemy and intended and purposed to strike at his own country." Of great importance is also this statement: “It is only overt acts by the accused which the Constitution explicitly requires to be proved by the testimony of two witnesses. It does not make other common-law evidence inadmissible nor deny its inherent powers of persuasion. It does not forbid judging by the usual process by which the significance of conduct often will be determined by facts which are not acts. Actions of the accused are set in time and place in many relationships. Environment illuminates the meaning of acts, as context does that of words. What a man is up to may be clear from considering his bare acts by themselves; often it.is made clear when we know the reciprocity and sequence of his acts with those of others, the interchange between him and another, the give and take of the situation.” In the Cramer case, the court held the act of “tippling in a tavern” to be a harmless act, of no possible benefit to the enemy, but even possibly a detriment to the illegal venture. No evidence was shown of any aid or comfort given at that tavern meeting — not even that Cramer had paid for the food or drink. The Court thought, on the other hand, an overt act charging the taking a large sum of money from the German agent was not such a “usual amenity of social intercourse” and was of such fibre as could constitute an overt act in a treason case. They noted that Cramer had given the German' agents no “shelter, nothing that can be called sustenance or supplies, and there is no evidence that he gave them encouragement or counsel, or even paid for their drinks.” They said, “Meeting with Cramer in public drinking places to tipple and trifle was no part of the saboteurs’ mission and did not advance it. It may well have been a digression which jeopardized its success.” The overt acts here involved were harboring an enemy, buying a car, accompanying to seek re-employment, the first an essential to any accomplishment of the saboteurs’ mission, the latter two were directly ordered by the saboteur’s superior. Their seeming harmlessness therefore is dispelled when they are viewed in their “setting,” their “environment.” During the week the son was with the father, little else was done (except visits to restaurants, cinema, taverns, and friends). Harboring and sheltering overt acts. There can be little doubt that on the respective dates alleged, the son, Herbert, stayed overnight in his father’s home, ate meals there, changed clothes there, and lived as a regular member of the family. Nor can we entertain much doubt that the harboring and sheltering, with the treasonous intent, constitute adhering to the enemy and giving aid and comfort. A saboteur must be lodged, and he must be lodged in a safe place if his mission is to be effected. One witness testified that the father sought lodging for the son at another place, also a “mailing address” at this witness’ rooming house, but did not succeed. It was essential for the son to be quartered in Chicago if he were to gain re-employment with the Simpson Optical Company, in accordance with his directions. We are clearly of the opinion that an overt act which showed the knowing harboring of a saboteur was an act which met the requirements of the Constitutional definition. The Overt Acts re purchase of atitomo-bile. It is defendant’s argument that the purchase of the automobile was an innocent act in its entirety — the father had been using the son’s Plymouth car during his absence, using it hard, and upon the son’s return immediately went about to replace it with another car. While this explanation has plausibility, it does not comport with the facts actually disclosed. One of the instructions Herbert received was to obtain a car to facilitate transportation of the explosives from the beach in Florida, for delivery to the various points of sabotage, and as a means of travel for the members of the expedition. The purchase of the car was arranged for within a couple of days of Herbert’s return— showing urgency of his duty. The old Plymouth car had not become obsolete, in fact it was used by the Haupt family during the week of surveillance. There would not have been the rush to buy the new car, without the pressing need for it. This son had just returned from a year’s absence, yet he and the father immediately went out and arranged for the purchase of a car on one day and picked it up the next — paying for it in cash, which included several $50 bills. The father purchased this car in his own name, signed the financial statement, gave references. It is most probable it was the enemy-son’s money, yet the father purchased the car. The father drove him there, took part in all the negotiations. We do not feel this, a harmless innocent act, incapable of being an overt act in a treason charge, although*an ordinary act in every- day life. Here it was an essential link in a deadly chain. It was an indispensable instrumentality to the effectuation: of the mission of the saboteur group. Defendant stresses the negligibility of the father’s driving the son ("accompanying”) him to the motor sales place as an overt act. True, it may not be considered as of gross proportion in the entire scheme of things, but it was essential, and the-father’s driving the son there facilitated! the accomplishment of the purchase. Sufficiency of Overt Act re Seeking Reemployment, Again we have an act which assuredly is a commonplace one, i.e., seeking re-employment upon return from a trip. It’s also natural to return to the place of prior employment. Again the sinister aspect is revealed when it is shown Herbert was the one member of the gang of saboteurs instructed to return to his old job to obtain secrets of the Norden bomb sight manufactured by the Simpson Optical Company, and to obtain plans of the Plant lay out for incendiary purposes. He was not merely seeking re-employment. What is more, his father knew it. The father’s accompanying him to the homes of the foremen, participating in the conversation (though not himself asking that his son be re-employed) was helping the son to carry out his instructions. Of course, the son could have sought re-employment alone- — -but it was not to the Company that he went — he went to the homes of the foremen, in the-evening, and it was natural for the innocent outward appearances, that his father and mother go with him. These foremen were -acquaintances of the family. The father’s presence gave weight to Herbert’s application. It also made for better concealment of Herbert’s wicked objective. Evidence of traitorous intent. “ * * * to make treason the defendant not only must intend the act, but he must intend to betray his country by means of the act” ' 325 U.S. 1, 31, 65 S.Ct. 918, 933. It is on this point that defendant leans heavily — his acts were allegedly those of a devoted father, harboring an erring son, solely because of paternal solicitude. He claims there is no “two witness” direct proof of any contrary possibility. Again the Cramer opinion must be our guide. It says: “What is designed in the mind of an accused never is susceptible of proof by direct testimony. If we were to hold that the disloyal and treacherous intention must be proved by the direct testimony of two witnesses, it would be to hold that it is never provable.” Inasmuch as it is obvious that direct proof of a man’s thoughts is well-nigh impossible, we rely on his utterances, as well as his acts, for a disclosure of intention. In the instant case the utterances are many, to different persons, at divers times. We have set them forth at length in the margin. jn essence they are this: Hans in June, 1941 said his son liked Germany better than the United States and wanted to go back and fight for the Germans. In June of 1942, Hans gave a friend eighteen fifty dollar bills “of my own money” to keep for him because he was afraid the F. B. I. would come and take it (the F. B. I. took it from the recipient). After defendant was taken into custody he asked the marshal if he might speak to the F. B. I. and two agents went to see him. They were Agents Hirsch and Robe. Defendant told them that Wergin was responsible for his son’s and his apprehension, and he wanted to testify in the trial against him. Defendant told them the Haupts had gone to the Wergin home on June 20th and Herbert told a complete story of his trip; defendant told them Herbert was in the Intelligence School and “that he had a huge sum of money to use in connection with that over here.” Wergin said he wasn’t a “dummy,” inferring he knew the purpose of Herbert’s trip, because he had a similar duty in World War I. Wergin offered to help Herbert because he wanted some of the money. Defendant told Agent Hirsch, the three Haupts went to the Froehling home on June 19th and Herbert told the same story, and told of coming back on a German submarine. He also told the Agent that on June 27th when Herbert had not shown up all day, the Haupts, Wergins, and Froeh-lings had a meeting in the Haupt home and decided on a uniform statement they would all make, if apprehended, namely, that they knew nothing of Herbert’s activities except that he had been to Mexico. F. B. I. agent Robe testified to the same as Agent Hirsch, adding that defendant said Herbert had said he was to be a “contact man” in this country. A co-worker of defendant in 1936 stated that Hans told him that he, the witness, was “not a good German” and he “should shame” himself for not contributing to the German cause; he lauded Hitler. An employer of defendant and his wife testified to conversations wherein defendant said: “If we entered war against Germany we would have a revolution in this country like they had there after the last war; that we have German organizations back here that would take our armories over, our electrical companies, our telephone companies; that the same thing would happen to us as happened in Norway and France, that we would be taken from within by Fifth Column activities.” He again lauded Hitler and his regime. Additional overwhelming evidence comes from two convicts who were jail-mates of Haupt in the County Jail after apprehension in 1942. They are Hamby and Majer-czak. Defendant told these jail-mates that Herbert had related how he had landed in this country, how they hid the explosives; that Herbert gave him money; that Herbert asked him to purchase an automobile and gave him $1,000 out of the money belt to buy it with; Herbert also gave him thousands of dollars which he hid; defendant told the witnesses he purchased the automobile for the son; he lauded Hitler. We have not overlooked the warning which appeared in the opinion of the majority of the Supreme Court in the Cramer case, to-wit: “To use pre-war expressions of opposition to entering a war to convict of treason during the war is a dangerous procedure at best. The same may be said about the inference of disloyal attitude created by showing that he refused to buy bonds and closed the door in the salesman’s face. Another class of evidence consists of admissions to agents of the Federal Bureau of Investigation. They are, of course, not ‘confessions in open court.’ The Government does not contend and could not well contend that admissions made out of court, if otherwise admissible, can supply a deficiency in proof of the overt act itself.” (Italics ours). In the instant case the pre-war utterances are not half so damming as the postwar ones. The pre-war utterances show a very strong pro-Nazi adulation. The postwar utterances show a knowledge of Herbert’s mission here, and defendant’s cooperation to effectuate it. Defendant stresses the flimsiness of the convicts’ testimony. It is admittedly not the weightiest of evidence. If true, it revealed defendant as an indiscreet person. Why should the jury believe it? If defendant had been of good sense, why would he join his son who chose to serve Germany on so important a war mission? Reconciliation of these statements, conclusively established, with ordinary horse sense and good judgment is impossible. Rather it characterizes the action of one who was drunk with Hitler Naziism and aflame with the delusion that he belonged to a superior people whose mission was to conquer the world, and his son was playing a leading role in that conquest. True, outside of an over-weaning self-confidence he had little to support his belief in membership in a superior nation. But the jury was weighing the story of the witnesses and the defendant. The latter was throwing bricks at these witnesses, discrediting them, and pointing to their prison record. Perhaps the jury believed defendant was living in a glass house. The jury, - however, not the court, was the judge of the credibility of all the witnesses. There is substantiation of the convicts’ testimony in the voluntarily-told story by defendant to the F. B. I. agents, when, in vengeance, he sought to ensure the conviction of the person he believed had betrayed his son and himself. The agents’ testimony concerned confessions not made in open court, and therefore was not admissible to prove the overt acts. They were properly received, however, to prove the intent with which those overt acts were committed.' We quote from the testimony of the witness Hamby. In the summer of 1939 defendant told a co-worker that he would never permit his boy to join the American Army. He would send him to Mexico and from there he could go to Germany and join the Air Force. He stated, “* * * he told me at the same time that if war broke out, that if the country would take him in the Army, he would crawl over the enemy lines and tell them our position. * * * he told me he had no feeling for the United States at all. His feelings were only for Germany, and he wished Hitler would come over here. * * Reading the evidence, with the care which a treason charge demands, we are left free of all doubt as to the sufficiency of the evidence of criminal intent to support the verdict. It persuasively supports the contention that the overt acts here were done with a knowledge and' with an intent to betray this country in time of war, and to aid the enemy, Germany. True, defendant was a scared man (the F. B. I. having investigated the Haupts before Herbert’s return), but his heart was still strong for the German cause, even after the declaration of war. He could not refrain from aiding his son in his mission, knowingly and treasonously. The jury could hardly have found other than the defendant was proud his son was a German saboteur, bent on uncovering important war secrets and destroying war plants which were essential to our successful conduct of the war. Such action by Government counsel in offering all this evidence, we think, would be better commended than criticized. In a case where criminal intent is so vital in the jury’s determination of guilt, as in a treason case, it would seem to be highly desirable that the jury receive all the enlightenment obtainable. In fact, it must occur to a reader of the record before us that defendant would, if innocent, have acted more wisely had he taken the witness stand and explained or denied, if he could make denial, all the damaging testimony of the Government witnesses. Of course, he was not required to take the witness stand. He could, as he did, stand mute, and no unfavorable comment upon such fact could be made to the jury by the prosecutor. Determination of the course to be pursued depends largely on the facts and the state of the evidence produced by the Government. One thing is certain. The Government should not be condemned for offering all the relevant, competent evidence. Counsel charges duplicity in the indictment and lack of particularity. In general these criticisms were covered in this court’s opinion on the former appeal (136 F.2d 661) and decided adversely to the defendant, upon an indictment sufficiently similar to the instant one to make the ruling there made, here applicable. We adhere to the ruling in that case on this point. Sufficiency of the Indictment. Defendant argues the indictment does not state the •crime of treason because the alleged overt acts are legally insufficient. We reject the contention for reasons heretofore given. Suffice it to say that the so-called “commonplace insignificant” overt acts charged when read “in their setting” are neither commonplace nor insignificant. Error is also assigned because certain '“withdrawn” overt acts such as 1, 4, and 8, which charged simply “conferring” with the enemy agent remained physically in the documentary indictment and were taken to the jury room. Evidence had been introduced which showed that such conferences had been in fact held at the various homes of the Froehlings. Wergins and Haupts, so their recital in the overt acts could not have been prejudicial. This evidence was received as a part “of the setting.” It has been generally believed that the prosecutor occupies a position somewhat judicial in character; that he is interested in presenting all the facts, those unfavorable to his case, as well as favorable. He does not perform as a skillful fencer matching wits with an able seaman especially skilled in defensive tactics in criminal cases. In other words, he is charged with the duty to fully disclose and fairly appraise all of the facts. Defendant’s criticism is that the prosecutor here held nothing back but disclosed all of defendant’s acts and deeds, even though some of them were not established by two witnesses. Such one witness testimony was illuminating and material on the issue of intent rather than as proof of overt acts. Denial of Bill of Particulars. Defendant complains of the denial of a bill of particulars which sought to inform him of the manner in which his accompanying his son to the homes of the former supervisory employers aided the son in securing employment, and in what manner and by what acts he harbored and sheltered his son, and how he aided his son’s mission by purchasing a car. A mere statement of these requests shows their insubstantiality. There was no vagueness in the indictment’s allegation which needed clarification by particularization — no surprise could be practiced on the defendant in proving the allegations. Denial of motion to quash indictment. Defendant argues that the trial court erred in refusing to quash the instant indictment inasmuch as the former indictment for treason, conviction under which was reversed by this court and the cause remanded, was still pending. Neither side has cited authority to support its contention. An examination of the two indictments makes it clear that they cover the same acts of treason, although the defendants were not the same. Nor were the overt acts. We have no doubt that should the instant conviction stand, an attempted retrial, upon the former indictment, would be subject to a plea of double jeopardy. Our conclusion is that the grand jury may return several indictments against the accused grounded on the same criminal act. The pendency of an indictment against the accused, where defendant has not been placed in jeopardy upon it does not prevent a later valid indictment against him. Generally speaking, the pendency of a previous indictment is not ground for quashing a second indictment," although it is discretionary with the court to require the Government to elect upon which indictment it will proceed. A few of the cases bearing on the subject are collected in the margin. Especial attention is called to United States v. Ball, 163 U.S. 662, 672, 16 S.Ct. 1192, 41 L.Ed. 300. The practice is not commended in the ordinary case. Errors in Admission of Evidence. Prewar Utterances. Error is charged for admission of pre-war utterances, one of which was made six years prior to the time of the offense, and the others about three or fewer years before. These utterances were strong pro-German statements. They have been detailed above. We believe such utterances were receivable as background evidence bearing on the intent with which the overt acts were committed. As early as Respublica v. Malin, 1 U.S. 33, 1 Dali. 33, 34, 1 L.Ed. 25, the question of the admissibility of words to enlighten as to motive, was discussed. There the Court said, “But, as it appears that the prisoner was actually with the enemy, at another time, words indicating his intention to join them are proper testimony, to explain the motives upon which that intention was afterwards carried into effect.” See also United States v. Pelley, 7 Cir., 132 F.2d 170; United States v. Burr, 25 Fed.Cas. page 55, No. 14,693; American Jurisprudence, Vol. 20, “Evidence,” Sec. 340. Admission of such evidence may be somewhat dangerous, but it may nevertheless be essential. In the instant case the trial court took care to guard the danger of misuse of such testimony by instructions both at the time the testimony was admitted, and at final submission of the case. He admonished the jury that such statements were not a basis for the charge of treason, that defendant had the legal right to freedom of expression. Such statements were to be considered only in determining what defendant’s intent may have been after the declaration of war, in committing (if he did) any of the overt acts submitted to them. Treason can not be committed without treasonous intent, and intent being the subjective fact it is, statements of the accused are of real importance in the proof. Evidence re Exhibits. Complaint is made of the introduction of pictures of the boxes of ammunition which were cached on the beach in Florida, of the saboteurs’ caps, Herbert’s ring with the Nazi crest, etc., as evidence not connected up with either Herbert or the defendant. The testimony of Burger, a member of the other saboteur party which landed in New York, connected it with Herbert. He had seen the exhibits in Germany when the two expeditions were being outfitted. The testimony of the F. B. I. agents, Connelly and Pryor, also tied it to Herbert. As against the defendant this evidence was receivable to show the treason to which Herbert was a party. It was necessary for the Government to show treason and also that defendant was a party to said treason. This evidence tended to show treason. The-burden was on the Government to show (a) a treasonable enterprise and (b), defendant was a party to it. This evidence-was part of the proof tending to establish (a). And the crime of treason is not child’s play. It’s a most serious matter. In all its naked wickedness, it is shocking. To offer evidence that the actors used high power explosives to destroy war industries, to kill large bodies of workers, to-obtain war secrets of great value to the enemy, was no d