Instructions to the Grand Jury

10 P.R. Fed. 166

Opinion

Gentlemen of the Grand Jury:—

We have met this time under somewhat unusual circumstances. It has been my honor to preside in this court something over four years. I have met a number of grand juries and had something to tell them as to their duties. The duties of grand juries are usually not very difficult. Most of you have served on grand juries before and know more or less the duties. When you meet you deliberate secretly; you are acting under oatb; yon tell nobody anything during tbe progress of your investigation or afterwards. Wbat is brought before you will generally be sent in by a United States commissioner, —there are several of these officers, — and it is your duty to look into it; or if the grand jury knows of a crime, or any one of them knows of an offense, he should report it to the general body for investigation.

Ordinarily I have had to give a, charge concerning postoffice frauds, counterfeiting, customs regulations, smuggling, and things of that sort. For instance, the general government-has very little to say about local matters; if a man has a lottery ticket and undertakes to sell it to another man on the street, this is not a violation of the Federal statute; it is something you have nothing to do with. But if a man having lottery tickets should come from Spain, Santo Domingo, or wherever there is a lottery of any kind, and should bring in these tickets, or send them here from there through the mails or express, that would be a violation of the Federal statute. You can see the difference. The first is local and looked after by. the local authorities, but it is against the Federal statute to bring lottery tickets or anything connected with lotteries into the United States and dispose of them. That comes under § 237 of the Criminal Code of the United States.

Your personal comforts will be looked after by the marshal, knd I am sure he will malee you comfortable. You will have a deputy marshal in attendance for anything you should want. The district attorney will also be present at any time you may need him, and give you information on any subject you may ask, but cannot be present when you vote. You will understand that the judge cannot advise you. I have not any. knowledge of tbe cases that will be brought before you; I am here to try these cases after you bring the indictments, and outline the law with regard to any particular case only when it comes on for trial. There is this to be remembered, — there are twenty-three of you; you act upon the vote of twelve whether you be thirteen, sixteen, or twenty-three; twelve must agree in order to find an indictment. Your foreman, when you think an offense has been committed, will write on the back of the indictment, “A true bill,” and he will sign it; and if you do not think that an offense has been committed he will sign on the back of the indictment, “Not a true bill,” or some other words expressing the same thing. It is not for you to say, finally, whether a crime has been committed; you do not try the case. For example, as to lottery tickets, or anything brought before you, — it is not for you to say whether a man is guilty or not guilty; you do not hear him, you do not hear his side; what is brought before you may not be all of the case. You have only this question before you, “Is there a probability that an offense has been committed by the accused?” If the evidence, in your minds, amounts to a probability that the offense was committed, then you find a true bill. The petit jury when the case comes on for trial determines whether the man is guilty or not guilty; you have simply to look into the probable cause.

■ All this is what I might have told you six months ago; now there are special matters which will perhaps take up more of your time than the usual cases. Our country is at war. We have but one country; it is immaterial now whether we formerly called ourselves Porto Ricans, Spaniards, or what else. Everybody on this grand jury, and practically everybody on this Island, is now an American. It was an honor, and one that I esteem very highly, that fell to. my lot to .declare that the recent act of Congress makes Porto Ricans Americans in every sense of the word. A Porto Rican is just as much an American as I am, and has just as many rights. Now I come befor*e you to-day, gentlemen, to give the other side of that decision. If is time that Porto Ricans are Americans; it is also as time that all Americans have duties to perform as that they have the rights and privileges of citizenship. The fact of your being an American gives you duties as well as privileges, and that is the subject we have specially to consider to-day. Porto Ricans have become Americans peaceably and willingly, but it so happens that the fathers of native Americans who are fighting now shoulder to shoulder were during the Civil War some on one side and some on the other, and for four years or more were enemies. I, personally, was a mere child, and only know it by hearing it talked of; but my kindred fought for the Confederacy, and I dare say those of the district attorney fought for the Confederacy also; while, on the other hand, many connected with this court and government were on the northern side. But this made no difference when the recent call came for soldiers to malee the world safe for democracy. We are all Americans. We have but one country.

As you know, our country, the United States of America, is at war with Germany. It is a war as to whose justice there can be no doubt. We went to war very reluctantly. I think there is no question that our President was as patient as any man could be; but when we did go to war we went into it practically unanimously, and now we are beginning to know what war is. We here on this beautiful Island have been interested in Red Cross and other work for abroad and in raising food crops for ourselves, but until lately I do not think we realized what the war means. But when our Porto Pican soldiers were taken to guard the Panama canal, and when very lately there was the selective draft under the Act of Congress of May 18, 1917, we began to realize it. It means that our brothers, our •children, may go from us and be sent to Europe to fight the battle of our country; it means that a family may be half here and the other half there. Our President has outlined the object of this war, and he said it in words that will always be remembered, — the object of this war is to make the world safe for democracy; and your duty and mine here in Porto Pico is to s.ee that Porto Pico is safe for democracy. This is not simply a war in Europe, it is a war which, to be successful, must be backed up in Porto Pico as well as in every state of the Union, in Texas, New York, and every other state. This war has to be a success here, and it is our duty to see that Porto Pico is made and kept safe for democracy.

"What we want, then, is patriotism on the part of all of us; and patriotism means something, not simply words. It consists of actions also. The Constitution of the United States was made for times of war just as much as it was made for times of peace, although it contemplates peace as normal and war as a means to secure a real peace. The Constitution of the United States (art. 1, § 8) gives Congress the power to declare war, to raise and support armies, and provide and maintain navies, and it means just what it says, that this shall be done by Congress by laws necessary and proper to that end.

The greatest crime that can be committed from the point of view of one’s country is treason. The Constitution has been careful to define treason, or rather to limit the application of it to overt acts of hostility, or adhering to national enemies, or giving them aid and comfort, — and treason is the only crime defined by the Constitution. I hope with all my heart that no such ease will come before you, but we do not know what conditions will develop a few months from now. It is my duty t© charge you on the whole law.

Section 5331 of the Revised Statutes of the United States, Comp. Stat. 1916, § 10165, follows the language of the Constitution and says: “Every person owing allegiance to the United States who levies war against them, or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason.”

Section 5332 is as follows: “Every person guilty of treason shall suffer death; or, at the discretion of the court shall be imprisoned at hard labor for not less than five years, and fined not less than $10,000.”

Section 5333 declares: “Every person owing allegiance to the United States and having knowledge of the commission of any treason against them ... is guilty of misprision of treason.”

Section 5336 is as follows: “If two or more persons in any state or territory conspire ... to oppose by force the authority thereof; or by force to prevent, hinder or delay the execution of any law of the United States . . . each of them shall be punished by a fine . . . and imprisonment.”

And Porto Pico is a territory.

If any such case come to you attention it is your duty to find an indictment. I will not say more on the subject for the present. I think you will have very little to do with alien enemies; that.is to say, Germans. The law has so arranged it that they will not get much before the courts. They are being looked after by the marshal of this court, not so much as marshal as a special officer of the government. Alien enemies are handled separately, but if any of them commits an offense it would be your duty to find the proper indictment.

Now, much will come before you regarding the recent acts of Congress. During the past few years more nationalizing* legislation has been enacted than at any time since the Civil War; and lately Congress, after careful consideration, has passed some notable acts relating to the war, which specially concern us at this time. It is your duty to enforce them fully.

As you know, among these laws is the one in regard to loans to the government, and under this have been carried out the greatest financial transactions, the greatest loans to a government, in the history of. the world. So, also, there is a very sweeping war revenue law, many of whose provisions apply to Porto Pico. If you find a person infringing any of these provisions it would be your duty to report a true bill.

There was passed on June 3, 1916, what is called the National Defense Act, and on the' 18th of May, 191Y, Congress enacted a law temporarily to increase the military establishment of the United States for the length of this war, whatever that may be, and in these laws there are a very great many important subjects and certain acts are denounced as crimes.

Section 5 of the Act of May 18, 191Y, provides that “all male persons between the ages of twenty-one and thirty, both inclusive, shall be subject to registration in accordance with regulations to be prescribed by the President; and upon proclamation by the President or other public notice given by him or by his direction stating the time and place of such regis tration it shall be the duty of all persons of the designated ages, . . . to present themselves for and submit to registration under the provisions of this act; . . . and any person who shall wilfully fail or refuse to present himself for registration or to submit thereto as herein provided, shall be guilty of a misdemeanor and shall, upon conviction in the district court of the United States having jurisdiction thereof, be punished' by imprisonment for not more than one year, and shall thereupon be duly registered.” [40 Stat. at L. —, chap. —, Comp. Stat. —, § 2044e.]

Congress in another Act of June 15, 1917, called the Espionage Act, one of great scope and importance, at § 3, says: “Whoever, when the United States is at war, shall wilfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of ,its enemies and whoever when the United States is at war, shall wilfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States or shall wilfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States, shall be punished.” [40 Stat. at L. 219, chap. 30, Comp. Stat. § 10,212c.]

Now, gentlemen, I charge you that it is your duty if you find anyone has so resisted or failed to respond to the draft to find an indictment against him; furthermore, if you find that anyone has acted, whether by publication in a newspaper, in a speech, or in any other way so as to interfere with this draft, it is your duty to find an indictment against him. An obstructor, the man higher up, may be a worse offender than an ignorant man whom be misleads. Tbat brings np a very interesting subject. How far does this legislation go? What subjects are embraced within it? What is it that can fairly be said to obstruct wilfully the recruiting or enlistment service of the United States? We can get at it better possibly by an illustration. If a working peon or some drunken man or some idiotic fellow should say that the United States has made Poiio Rican citizens of the United States in order to put them in the American Army, you need pay no attention to it. A fool is answered by his folly. On the other hand, if you find that anyone in public position or in any business with public functions, in the public prints or the like, has used language or dono things which interfere with the enlistment or draft service of the United States, or the necessary result of which was to interfere with the enlistment or draft service of the United States, that man has committed an offense, and it makes no difference who he is; if a man has committed a crime, the higher or more prominent he is the worse the crime, and you must find an indictment. An obstructor may do more harm than a slacker. Intent is important, but that is an unseeable mental operation, and it is enough that the natural result of the. act was to interfere with enlistment or draft. A man is presumed to intend the natural results of his acts.

Mr. Wilson has truly said that there are some things that can be done and said in a time of peace which cannot be done and said in a time of war. This is common sense. Lighting a cigar cannot be permitted in a powder magazine. So that, if anyone in Porto Rico publicly makes remarks or advocates policies which tend to un-Americanize Porto Rico, it is for you to consider, whether under the circumstances it does or does not tend to interfere with the enlistment and draft laws of the-United States; and this means not merely registration, but the-whole process up to joining the colors. If you hold that such statements taken under all the facts of the case interfere with, the draft or enlistment laws of the United States, that person, whoever he may be, has committed an offense, and it is your-duty to find an indictment. Whether any particular man has been kept from registration or draft need not detain you. Questions of detail and defense can be thrashed out before a petit jury, where full justice to government and defendant, can and will be done. An innocent man need have no fears.

Section 2 of the Act of June 15, 1911, treating of the espionage and other subjects, is as follows:

“(a) Whoever, with intent or reason to believe that it is tobe used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to, or aids or induces another to, communicate, delivér,. or transmit to any foreign government, . . . either directly or indirectly, any document, writing, code book, signal book,, sketch, photograph, photographic negative, blue print, plan, map, model, note, instrument, appliance, or information relating-to the. national defense, ... in time of war shall be punished by death or by imprisonment for not more than thirty years. . .

Gentlemen, we have to realize that we are at war, and you see how severely such things are punished because we are at war. We cannot 'be more tender to enemies than to our own country. Such acts, are not called treason, but are punished as. new offenses, and if such cases come to your attention you are to find indictments and let the accused go before a petit jury.

Section 4 of this Act of June 15, 1917, on Espionage, provides for tbe punishment of persons conspiring to commit such offenses, and deserves careful attention. Conspiracies that produce disastrous results seem-to be the favorite method of enemies afraid to show themselves in the open, and to what such secret and concealed work may lead we see in the impotent and disastrous plight of Russia. So that the Act of June 15 provides:

“See. 4. If two or more persons conspire to violate the provisions of §§ 2-or 3 of this title, and one or more of such persons does any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be punished as in said sections provided in the case of the doing of the act the accomplishment of which is the object of such conspiracy.”

These are important subjects, but there are also others for consideration. This same Law of June 15, 1917, contains other titles such as Vessels in Ports of. the United States, Injuring Vessels Engaged in Foreign Commerce, Interference with Foreign Commerce, Seizure of Arms and Other Articles Intended for Export, Disturbance of Foreign Relations, and Passports. Anybody who obtains a passport fraudulently or aids someone else to obtain such passport commits a crime and must be indicted. The last title, XII., covers Use of Mails and makes certain papers unmailable and provides for prosecution of the senders.

The Act of May 18 of this year as to the Military Establishment relates also to the sale of liquor. Section 12 of this act reads as follows: That “the President of .the United States, as Commander in Chief of the Army, is authorized to make such regulations governing the prohibition of alcoholic liquors in or near military camps and to tbe officers and enlisted1 men of tbe Army as be may from time to time deem necessary or advisable. . . It shall be unlawful to sell any intoxicating liquor, including beer, ale, or wine, to any officer or member of tbe military forces while in uniform, except as herein provided. . . .” [40 Stat. at L. —, chap. —,'Comp. Stat. —, § 20441.]

Such regulations have been made. Where a camp is placed near a town, as in tbe case of San Juan, this law under tbe President’s regulation does not apply to all tbe 5 miles around tbe camp, but extends to a half mile zone only. Tbe whole law on tbe subject of liquor should be examined.

There is another violation that comes -under tbe police regulations of every state or country on tbe face of the globe, or ought to, and it is covered by § 13 of tbe same Act of May 18, 1917, on tbe subject of places and persons of ill fame, as follows: “That tbe Secretary of War is hereby authorized, empowered, and directed during tbe present war to do everything by him deemed necessary to suppress and prevent tbe keeping or setting up of bouses of ill fame, brothels, or bawdyhouses within such distance as be may deem needful of any military camp, station, fort, post, cantonment, training or mobilization place. . . .”

Tbe distance has been fixed at 5 miles by necessary regulations adopted by tbe Secretary of War. Such regulations are proper; for they do not make law, but, as tbe law itself directs, cover administrative details which cannot be declared or even foreseen by tbe legislature.

A very recent act, approved October 6, 1917, forbids trading witb tbe enemy and provides for an alien property custodian. Under this also matters may arise for your attention.

Those of you who have previously been on the grand jury have heard me charge that the body need not find an indictment for a misdemeanor, since that could be presented by the district attorney; but this does not apply to these military laws. It may well be that the' attorney in these critical times will want the support of yourselves as representing the public. Anything that is defined in these laws is important to the welfare of the country and if brought before you it is not in your discretion to ignore it; it is your duty to find indictments in such cases. The country needs your zeal and interest, as well as that of the attorney.

I have undertaken to give you only the leading provisions of the new legislation, and will he glad to advise you further if requested at any time. The public situation, however, you well know. Our country is in the world war for democracy, and it is the duty of all Americans tp aid by our own exertions in our different spheres, and by preventing or punishing infractions of the new laws. Tour duties as grand jurors at this time are unusually important, and much depends upon your action. I am sure that you will do your duty in the premises without fear or favor.

Petek J. IIamixtoN,

Judge United States District Court.

San Juan, P. E.