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82 F.2d 962
GILLARS
v.
UNITED STATES.
No. 10187.
United States Cout of Appeals District of Columbia Circuit.
Argued January 9, 1950.
Decide May 19, 1950.
Mr. James J. Laughlin, Washington, D. C., for appellat. Mr. William E.
Owen, Washington, D. C., also entered an appearance for apellant.
Mr. J. Frank Cunningham, attorney, Department of Justice, Washingtn, D. C.,
with whom Messrs. George Morris Fay, United States Attorney, Washington, D.
C., and John M. Kell, Jr., Special Assistant to the Attorney General, were
on the brief, forappellee.
Before CLARK, WILBUR K. MILLER and FAHY, Circuit Judges.
FAHY, Crcuit Judge.
1Appellant was convicted of treason in a jury trial in the nited States
District Court for the District of Columbia. Treason aloneof crimes is
defined in the Constitution, as follows:
2"Treason against th United States, shall consist only in levying War
against them, or in adhering to their Enemies, giving them Aid and Comfort.
* * *" U.S. Const. Art. III, 3.1
3The irst Congress, in 1790, provided by statute,
4"* * * That if any persn or persons, owing allegiance to the United States
of America, shall levy wa against them, or shall adhere to their enemies,
giving them aid and comfort within the United States or elsewhere, and shall
be thereof convcted, on confession in open court, or on the testimony of
two witnesses to the same overt act of the treason whereof he or they shall
stand indicted, such erson or persons shall be adjudged guilty of treason
against the United Stats, * * *." 1 Stat. 112 (1790).
5The indictment alleges that appellant was brn in Maine, was a citizen of
and owed allegiance to the United States, tha within the German Reich,
after December 11, 1941, to and including My 8, 1945, in violation of her
duty of allegiance she knowingly and inentionally adhered to the enemies of
the United States, to wit, the Goverment of the German Reich, its agents,
instrumentalities, representatives nd subjects with which the United States
was at war, and gave to said enemiesaid and comfort within the United
States and elsewhere, by participating in the psychological warfare of the
German Government agaist the United States. This participation is alleged
to have consisted of rado broadcasts and the making of phonographic
recordings with the intent thatthey would be used in broadcasts to the
United States and to American Expedtionary Forces in French North Africa,
Italy, France and England. The indictment charges the commission of ten
overt acts, each of which is described, and, finally, that following
commisson of the offense the District of Columbia was the first Federal
Judicial District into which appellant was brought.
6Eight of the ten alleged overt acts were submitted to the jury. A erdict of
guilty was returned, based on the commission of overt act No. 10, which is
set forth in the indictent as follows:
7"10. That on a day between January 1, 1944 and June 6, 194, the exact date
being to the Grand Jurors unknown, said defendant, at Berln, Germany, did
speak into a microphone in a recording studio of the German Radio
Broadcasting Company, and thereby did participate in a phonographic
recording and cause to be phonograhically recorded a radio drama entitled
"Vision of Invasion," said defendan then and there well knowing that said
recorded radio drama was to be subsequently broadcast by the German Radio
Broadcasting Company to the Uited States and to its citizens and soldiers
at home and abroad as an element of German propaganda and an instrument of
psychological warfre."
8We now discuss the several matters raised by appellant as grounds forreversal.
9* The Sufficiency and Weight of the Evidence
10
Appellant conteds the verdict was contrary to the evidence and to the
weight of the evidence. The argument runs as follows: The indictment charged
that at various times appellant spoke into a microphone and her voice was
later sent over the radio; that two of the ten overt acts o this character
were withdrawn, leaving eight for jury consideration; that f these she was
acquitted of seven; that she admitted speaking into te microphone and
sending her views over the radio but denied any intention to betray; and
that therefore the jury, havingin mind this admission, concluded there was
no intent to betray in the case o seven overt acts. From this it is argued
that the finding of treasonableintention as to one overt act could not have
been made consistently with acquittal of these other overt acts.
11
If, however, there is sufficient evidence to support the verdict of guilty
based on the commission of the teth overt act alone we may not reverse even
were we of opinion that the evidence was equally strong to support a
conviction based on other allegedovert acts as to which appellant was
acquitted. A jury verdict need not be consistent.
12
"Consistency in the verdict is not necessary. Each count in an indictment is
regarded as if it was a separate indictment. Latham v. The Queen, 5 Best &
Smith 635, 642, 643; Selvester v. United States,170 U.S. 262, 18 S.Ct. 580,
42 L.Ed. 1029. * * *" Dunn v. United States, 1931, 284 U.S. 390, 393, 52
S.Ct. 189, 190, 76 L.Ed. 356, 80 A.L.R. 161.
13
The evidence was sufficient to support the verdict on the tenth overt act
There as before the jury evidence from which they could find the following:
Appellant was a native born citizen of the United States and therefore owed
allegiance to the United States;2 in 1940 she was thirty-nine years of age;
she had studied dramatics and had been employed in the United States as an
acress; she left the United States in 1933, and took up residence in Berlin
in 1934; on May 6, 1940, she was employed there by the German Broadcasting
Company as announcer on he European Services; within a few months after
this employment she was made mistress of ceremonies of the European
Services; in 1941 she took part also in an overseas service program
broadcast to the United States; he United States declared war on Germany
December 11, 1941; the German Radio Broadcasting Company was a tax-supported
agency of the German Government; it consisted f two main branches, the Home
Branch and the Foreign Branch; the Foreign Brnch in turn consisted of the
European Service and the Overseas Service; the purpose of the broadcasts by
the Foreign Branch was to diseminate to the Armed Forces and civilians of
the United States and her allis propaganda along lines laid down by the
German Propaganda Ministry and the Foreign Office to aid Germany and to
weaken the war effort of the nations at war with her; daily conferences were
held among Goebbels, head of the Ministry of Public Enlightenment and
Propaganda of the German Government, and representatives of te Foreign
Office to formulate propaganda lines; these were followed by conferences of
the Director of the Foreign Branch with the officials of the Overseas
Service about the propaganda lines to be pursued; the employees of the
Overseas Service followed the propagada instructions then announced; the
lines of propaganda for broadcast to the citizens and Amed Forces of the
United States were that Germany was superior in variousways; she was
fighting against Communistic domination of the world; the Unitd States was
improperly influenced to enter and remain in the war by Jewish interests;
German fight
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