(257 F.)

"In other words, the freedom of the press is not a defense, if you think the defendant has done these things willfully and with the intent to obstruct the recruiting and enlistment of the military forces of the United States.

It was not only necessary to prove beyond a reasonable doubt that the defendant willfully published these articles with the intent to cause insubordination, etc., and to obstruct the enlistment and recruiting service, but that this intent had been carried into effect by language adapted to produce these results.

The emphasis which was laid by the court upon the necessity of finding the intent of the defendant and the direction of the inquiry of the jury to the determination of this, to the exclusion of any consideration of whether the language of the articles was calculated or could reasonably be held to be adapted to cause insubordination, etc., or obstruct enlistment or the recruiting service, and failure to instruct the jury that, whatever the intent of the defendant, it was necessary that they should find that it was coupled with some act or words adapted to carry it into effect, removed from their consideration the principal. element of the offenses with which the defendant was charged.

[11] The defendant also excepted to this instruction and assigns the same as error:

"The indictment does not mean that it is necessary for you to find that this was intended to affect the troops in Cayey, Panama, or anywhere else. The act refers to the influencing and the disloyalty, etc., in the 'military forces' of the United States, and the military forces of the United States means the able-bodied men of the United States, the people from whom the United States may make up its army. It does not even mean those between the ages of 21 and 31 years; it means all able-bodied men of the United States and its territories, including Porto Rico. So, if you find that these articles were intended and are to be construed as affecting able-bodied men of Porto Rico, whether they are registered or not, or whether they are liable under the call, makes no difference; the military forces are the able-bodied men of this island."

The statute is a penal one, and while the military forces of the United States might be construed to include not only those who had been inducted into the military service, but also those who had been required to register under the Selective Service Act and had not been exempted or excused from service, we do not think it could be construed so broadly as to include all the able-bodied men in Porto Rico -the 288 Porto Ricans who had renounced American citizenship. among them if they were able bodied-whether they were within the class who were obliged to register or not.

While we think these instructions cannot be sustained and that they were prejudicial to the defendant, we feel also that there was error in denying the motion, made by him at the close of all the testimony, that the jury be instructed to return a verdict of not guilty.

We have examined with great care both statements which the defendant admits he published in his paper, and also the testimony introduced by the government and by the defendant, and we are unable to discover any evidence upon which the finding of the jury, that he willfully published either article with the intent to create insubordination, disloyalty, mutiny, or refusal of duty in the naval or military.

forces of the United States, or to obstruct the enlistment or recruiting service of the United States, can be sustained. The only evidence which the jury had before it beside the two articles was the testimony of two employés in the Post Office Department, who testified in regard to the mailing and circulation of the papers in which the articles were contained, which was admitted by the defendant, and the testimony of the adjutant general of Porto Rico, who testified that the article which appeared in the defendant's paper under date of October 27th, entitled "Recruiting in Porto Rico," was not true; that the quota to be furnished from Porto Rico was 12,833, and that he had not at any time received from his superiors any further orders in regard to the quota of men which was to be supplied in Porto Rico; that at the time of the trial no men had been drafted in Hawaii for service, and while the gross quota of men to be supplied by Hawaii for the National Army was 2,403, it had actually furnished 4,397 men. He was shown a copy of "La Correspondencia," a newspaper published in Porto Rico, and admitted that the figures given by that paper in its issue of July 20, 1917, showing the number of men to be furnished by the different states of the Union, Porto Rico, and Hawaii, were correct in accordance with the official records in his office.

The defendant testified that he was born in Porto Rico; that he served in the Spanish War upon the side of Spain, and that after the treaty of Paris he had opposed compulsory American citizenship for Porto Ricans until the enactment by Congress on March 2, 1917, of legislation conferring citizenship upon residents of that island; that upon March 7th, after the passage of the act, he had declared his intention of not becoming a citizen, in accordance with its provisions that those who did not desire to become American citizens might file a declaration of their rejection of the offer of citizenship in the United States District Court of Porto Rico. In the "Heraldo de las Antillas" of March 20, 1917, he stated his reasons for his action. This article and another in the same paper, under date of March 31, 1917, were admitted in evidence. In these articles the defendant stated that he did not have the attachment for America as a nation to make it proper for him to become an American citizen, and that

"To make a display of American citizenship without entertaining a proper feeling of loyalty to the American flag would not only create a disagreeable predicament, but would also constitute the most pronounced betrayal of personal convictions and the most utter disregard of personal decorum."

He also stated in the article of March 20, 1917, that those who have accepted American citizenship—

"are under positive obligation to be loyal to that citizenship and to that ⚫ flag."

A publication of the defendant in his paper, under the heading "Topic of the Day," under date of October 13, 1917, was also admitted in evidence, which contains the following statements:

"According to every indication, the moment is nearing for Porto Rico to begin paying its tribute of blood to the American flag. New instructions have been issued in the daily press-and by the way they are not very clear, thanks to the very poor Spanish in which they are written or translated

(257 F.)

and in such instructions the fact of not being citizens of the United States is also omitted as ground for exemption. There is no doubt, however, that the matter is to be brought very shortly and that it must be solved in one way or another. As for us-we repeat it once and one hundred timeswe have no doubt whatever; but it is also known that in these times the least doubtful things seem dark and adulterated. We believe that the citizen of Porto Rico who accepted the citizenship of the United States, inasmuch as he was given six months within which to renounce it, is inevitably bound to take up arms to defend his nation. There was not the least deceit in it, except such difficulties as were interposed by some officials to prevent the renunciation of such citizenship, the period of time fixed by law for the exercise of that right having transpired precisely during the time that the Congress of the United States established compulsory military service and was making preparations to carry the same into practice. * Then and

now we showed ourselves respectful to the wishes of each and everybody, and now that the time within which to exercise the right of renunciation has more than expired, we must continue to show the same respect; and even from our own standpoint we must acknowledge and proclaim that those Porto Ricans are bound to accept all the consequences of their action as such citizens of the United States. But just as we are of the opinion concerning those who accepted the citizenship of the nation whose flag waves to-day over the castles of our country, we understand, and we shall not tire repeating it until this question shall have been duly determined, that no person who is not a citizen of a nation can be a soldier of that nation unless it is done through an act of force against which it is always lawful to claim as long as such claim is made in a legal way and before the same Congress which provided the right to renounce American citizenship."

These articles show that the defendant had been engaged in a controversy over the desirability of the residents of Porto Rico accepting American citizenship, which was conferred upon them by the Jones Bill, so called, and that after the six months had expired in which citizenship might be renounced under the provisions of the bill, he had been discussing the rights of those who had so renounced the offer of citizenship; that 287 other residents of Porto Rico beside himself had, under the terms of this act, renounced this citizenship; and that, whether he and these 287 associates were subject to the provisions of the Selective Draft Act, was a matter of great interest to him and the subject of discussion through the columns of his paper. The attitude of the defendant toward American citizenship and his published statements in regard to the duty which Porto Ricans owed the American flag who had become American citizens, throw light upon the intent with which the defendant published the articles upon which the indictment against him was found.

The defendant testified that, after the passage of the Jones Bill, he ceased the publication of his paper as a daily on May 17, 1917, and continued its publication as a weekly with the principal object of defending the rights of those who had renounced American citizenship, taking his news from local papers, as his paper had no news service of its own. That, in publishing his article of October 27, 1917, he had before him an article in the issue of October 20, 1917, of the "La Correspondencia," another newspaper published in Porto Rico. This article, entitled "The Draft in Porto Rico," was admitted in evidence. It stated in substance that, according to latest official authorized advices, 17,000 men would be recruited in Porto Rico, instead of 12,000, as had been previously reported, and that it was the purpose of the

government to draft 12,000 white men and 5,000 negroes or colored men; that the latter would be sent immediately to the United States to a suitable cantonment for men of that race, and the 12,000 white men would be trained in Porto Rico; that this had not yet been decided, but that the news in detail would be given soon; and that, if this project was finally adopted, Porto Rico would be contributing many more men than was set at the beginning.

He testified that he had before him, also, in the preparation of his article an article published in the "La Correspondencia" on July 20, 1917, which gave the number of men to be furnished under the draft by each state and territory, and concluded with this statement:

"As may be seen by our readers from the list we are publishing, the quota of Porto Rico, as a blood tax, to be a part of the first National Army, is 12,833 men; that is, it occupies the place designated with No. 22 among all the states and territories, being over 29 states and territories whose quota of men for the defense of the great American nation is much smaller."

While the statements contained in these articles in "La Correspondencia" were incorrect, and that of July 20, 1917, failed to take into consideration that the number of men assigned to the different states was the net number to be drafted after the number who volunteered had been deducted, there was no evidence that the defendant knew such to be the fact or was in any position where it might be said that he should have known the facts. It did appear in this statement that Hawaii would furnish no men, and that Porto Rico would furnish a larger number of men than 29 states and territories, although the population of these states far exceeded that of Porto Rico, on the assumption that Porto Rico would furnish 12,833 men. The article of October 23, 1917, from "La Correspondencia," stated that the draft, from officially authorized advices, would be raised to 17,000 men. These articles were admitted in evidence to meet the charge that the defendant had an evil intent in making the statements with which he was charged. In the light of the evidence afforded by them, we do not think that any construction can be placed upon the article of October 27th that would sustain a finding that it was willfully published with the intent to cause insubordination, etc., or to obstruct the recruiting or enlistment service. It was clearly in the nature of a criticism of the conduct of those who were charged with the duty of protecting the citizens of Porto Rico, and seeing that they were not unfairly discriminated against under the Selective Service Act, because he asks:

"What do the politicians say to that, who attribute to themselves the monopoly of the defense of the people's interests? They say nothing. They are busy defending some positions that they have paid for."

There was no evidence before the jury to show the intent with which the defendant published this article, except the language of the article itself and the testimony of the defendant in regard to the sources of information which he had for it, and this was not only uncontradicted, but was supported by the testimony of the government that the articles in "La Correspondencia" were actually published in that paper, and also the uncontradicted testimony of the defendant in regard to the prior publications in his own paper.

(257 F.)

[12] We think there was no evidence to sustain the verdict of the jury that the defendant published either the article of October 27th or that of November 10th willfully, with the intent to create insubordination, mutiny, etc., or to obstruct the recruiting or enlistment service. of the United States, and that the defendant's motion to instruct the jury to return a verdict of not guilty should have been granted.

The judgment of the District Court is reversed, the verdict is set aside, and the case is remanded to that court for further proceedings not inconsistent with this opinion.

FIRST NAT. BANK OF SWEETWATER, TEX., v. RUST et al.

(Circuit Court of Appeals, Fifth Circuit. March 15, 1919.

Denied May 9, 1919.)

Rehearing

No. 3300.

1. BANKS AND BANKING 117-CERTIFICATE OF DEPOSIT ISSUANCE FOR INDIVIDUAL DEBT-RISK OF AUTHORITY.

One to whom a bank's president, in payment of his individual debt, issued its certificate of deposit, accepted with knowledge thereof, took the risk of the president's authority, depending on whether there had been a contemporaneous deposit, as recited in the certificate; the principle that his general powers would give apparent authority not applying, where he is known to be acting in his own interest.

2. BANKS AND BANKING

118-CERTIFICATE OF DEPOSIT-ISSUANCE FOR INDIVIDUAL DEBT-AUTHORITY-BURDEN OF PROOF.

One to whom a bank's president issued its certificate of deposit in payment of his individual debt, accepted with knowledge thereof, seeking to hold the bank thereon, has the burden of proving the making of the recited contemporaneous deposit, necessary for the authority to issue certificate.

3. BANKS AND BANKING 118-CERTIFICATE OF DEPOSIT-EVIDENCE OF DEPOSIT.

A bank's certificate of deposit having been issued by its president in payment of his individual debt, and accepted with knowledge thereof, neither recital in certificate nor statement in letter of president to person receiving the certificate is evidence against bank of deposit having been made, necessary for president's authority to issue certificate.

4. EVIDENCE 244(12)-STATEMENT OF BANK PRESIDENT-PAST TRANSAC

TION.

Statement of president of bank, to one to whom its certificate of deposit had been issued by its prior president in payment of his individual debt, that its books showed the deposit called for thereby, is not inadmissible against it, in the absence of injury therefrom raising an estoppel; it amounting to an admission that past transactions had occurred and had been evidenced by the bank's books.

Batts, Circuit Judge, dissenting.

In Error to the District Court of the United States for the Northern District of Texas; Robert T. Ervin, Judge.

Action by Anna Rust and husband against the First National Bank of Sweetwater, Tex. Judgment for plaintiffs, and defendant brings Reversed and remanded.

error.

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