STEPHENS, Circuit Judge.
Tomoya Kawakita appeals from a judgment of conviction and a sentence of death imposed after a United States District Court jury returned a verdict finding him guilty of treason against the United States of America.
I.
Appellant was born in Calexico, California, on September 26, 1921, of Japanese-born parents who were nationals of Japan. By virtue of his birth appellant was a citizen of the United States. United States Constitution, Amend XIV, Sec. 1; United States v. Wong Kim Ark, 1898, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890. By virtue of the nationality of his parents appellant was at birth a national of Japan. Kiyoshi Hirabayashi v. United States, 1942, 320 U.S. 81, 97, 63 S.Ct. 1375, 87 L.Ed. 1774.
In 1939, at the age of 17, appellant applied for and was issued a passport and, with his father, went to visit his grandfather in Japan. The father returned to the United States but the son remained in Japan and attended a preparatory school [508]*508for “Niseis”, or persons born in the United States of Japanese parents. In March, 1941, appellant entered Meiji University in Japan where he took a course in commerce and also received military training. In April, 1941, he renewed his passport. Although war broke out between Japan and the United States in December, 1941, he remained at the University, completed his course of study and graduated. Although of military age and, so far as the record goes, physically fit, at no time did he enter or serve in the armed forces of Japan and there is nothing in the record to indicate that he tried to enter the armed forces or that the Japanese government did anything toward bringing him into its armed forces. While at the University he was registered as a foreigner or alien at the local police station. In 1943, through his uncle Yazaemon Kawakita, he applied for and received permission as of March 8, 1943, to have his name entered in the family register, or “koseki tohon”.
Upon graduation from the University, appellant requested assistance from one Takeo Miki, a member of the Japanese House of Representatives. Miki, a friend of the father’s, had been furnishing appellant with financial assistance during his schooling. Miki assisted in obtaining employment for appellant as an interpreter with the Oeyama Nickel Industry Company, Ltd.,1 the employment beginning in August, 1943, and continuing until after the surrender by Japan on August 10, 1945.
The company with which appellant was employed was a private corporation, engaged in mining, milling, producing and processing metals for munitions and' for other uses. Adjoining the factory, located at Oeyama in Kyoto Province on the west side of the Japanese Island of Honshu, was a prisoner-of-war camp, supervised and directed by Japanese military personnel. About ten or twelve miles from the prisoner-of-war camp was a surface mine where the prisoners-of-war were required to work from time to time. Medical attention was furnished the prisoners by a British and an American Army doctor, both prisoners-of-war, in a barracks set aside as a “hospital”. Appellant began his employment in the camp in August of 1943, and shortly thereafter British and Canadian prisoners-of-war arrived. His duties consisted of interpreting between the British and Canadian prisoners-of-war and the Japanese military foreman in charge of the camp.
In 1944 and early in 1945, approximately four hundred American prisoners-of-war arrived at the camp. These consisted primarily of men who had been captured on Bataan early in 1942. As a result of approximately two and one-half years of inadequate diet, confinement and hard work, all of the Americans were underweight and were suffering from malnutrition and a variety of other ailments.
The work done at the mine by the American prisoners consisted of digging nickel ore from the face of the mountain side, and loading it onto cars which were emptied into hoppers. The prisoners also performed other general labor in the mine area, including such duty as carrying logs to be used for construction and maintenance work.
The overt acts upon which the treason charges in the indictment are based were alleged to have occurred during the period from August 8, 1944, up to and including August 24, 1945.
After the Japanese surrender on August 10, 194-5, the camp was turned over to the Americans. Thereafter it appears that Kawakita performed some services for the Americans, being of assistance particularly because of his knowledge of the English language. While he remained in Japan during the post-war period he was not charged with having committed any acts of treason.
In December of 1945, appellant went to the United States consul in Yokohama to inquire about his United States citizenship: There he made an “Application for Registration”, in which he stated that he was a United States citizen, that he had not been naturalized as a citizen of a foreign state [509]*509and that he had not taken an oath of allegiance to a foreign state. Before a foreign service officer he swore allegiance to the United States.
On the same date he signed a document entitled “Affidavit by Native American to Explain Protracted Foreign Residence” in which he stated: That he had come to Japan to study Japanese; had graduated from Meiji University; that he possessed “dual nationality”, Japanese as well as American from birth, but that his name was not entered in his uncle’s census register until March 8, 1943.
The foreign service officer who took appellant’s affidavit concluded that “ * * * He has presented evidence deemed satisfactory to overcome presumption of expatriation.” We set out the officer’s findings of fact in the margin.2
On June 19, 1946, appellant applied for a United States passport and again took an oath of allegiance to the United States. He also swore to an “Affidavit to Overcome Presumption of Expatriation”, in which he stated that his reason for foreign residence since his registration on December 31, 1945, was to await transportation to the United States. He affirmed that since January 13, 1941, he had not entered, or served in, the armed forces of any foreign state and that he had not accepted or performed the duties of any office, post, or employment under the government of any foreign state or political subdivision thereof for which only nationals of such state were eligible.
He was issued a United States passport on June 20, 1946, and departed Japan on or about August 2 or 3, 1946, enroute to the United States.
On his return to the United States appellant went to live with his father in Los Angeles, California, where he enrolled at the University of Southern California as a student.
In October, 1946, he visited a store in Los Angeles, and William Bruce, who had been a prisoner-of-war at Oeyama, in the store at the time, recognized appellant as one who had served the Japanese at the camp, and reported that fact to the authorities.
On June 5, 1947, appellant was arrested by an agent of the Federal Bureau of Investigation in Los Angeles and arraigned before a Commissioner on the same day. An indictment charging him with treason was returned by the United States Grand Jury on June 11, 1947, to the United States District Court for the Southern District of California.3 Fifteen overt acts of treason [510]*510were charged. The text of those found to have been committed is set out in the margin.4 We briefly relate them further on in this opinion.
[511]*511Kawakita entered a plea of “Not Guilty” to all of the charges made.
The trial began on June 18, 1948. The jury 5 retired to deliberate on August 25, 1948. After deliberations began, the court received numerous communications from the jury to 'the effect that no unanimous verdict could be reached together with requests that the jury be discharged. The jury was requested to continue deliberations. On September 2, 1948, the jury returned a general verdict of guilty and special verdicts of guilty as to overt acts (a), (b), (c), (d), (g), (i), (j), (k). The jury was unable to reach a unanimous verdict as to overt acts (e), (f), (h), (1) and (o). Allegations as to overt acts (m) and (n) were withdrawn by the Government.
The trial judge imposed the death sentence.
II.
Did Kawakita Owe Allegiance to The United States?
The definition of treason is a part of the supreme law of the land. United States Constitution, Article III, Sec. 3, provides: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. * * * ”
Title 18 U.S.C.A. § 1, Act of March 4, 1909, c. 321, § 1, 35 Stat. 1088, as it stood at the time of the alleged overt acts, provided:6 “Whoever, owing allegiamce to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason.” [Emphasis ours]
By definition, the crime of treason can only be committed by one owing allegiance to the United States. It is appellant’s contention that at the time the acts charged in the indictment were committed, he did not owe allegiance to the United States because, as a dual American and Japanese citizen, he owed allegiance to Japan alone while in that country. According to appellant’s reasoning, in his brief, under his dual citizenship he could adhere to the enemy and give it aid and comfort while in the enemy country with impunity. As we shall presently show, dual citizenship does nothing to relieve an American citizen of his citizenship obligations. An American citizen retains that status until expatriated under American law and he is subject to trial and punishment for treason. It is also contended that, having been a Japanese national from birth, Ka-wakita’s act of registration in the family census register, and his other activities during the war, amounted to expatriation from United States citizenship.
Expatriation is the voluntary renunciation or abandonment of nationality and allegiance. Perkins v. Elg, 1939, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320. In order to be relieved of the duties of allegiance, consent of the sovereign is required. Mackenzie v. Hare, 1915, 239 U. S. 299, 36 S.Ct. 106, 60 L.Ed. 297. Congress has provided that the right of expatriation is a natural and inherent right of all [512]*512people,7 and has further made a legislative declaration as to what acts shall amount to an exercise of such right.8 The enumerated methods set out in the chapter are ex[513]*513pressly made the sole means of expatriation.9
The jury was instructed on the applicable law of expatriation and that if appellant were no longer a citizen of the United States he could not be found guilty of treason. The court went further and instructed the jury that if it found appellant believed he was not a United States citizen it should acquit as intent would then be lacking. The verdict indicates that all of these issues were resolved against appellant.
The contention that a conviction of treason must be reversed because the accused did not owe allegiance to the United States was made in Gillars v. United States, D.C.Cir., 1950, 182 F.2d 962. There, defendant was convicted of treason against the United States, committed while in Germany during World War II, for conduct consisting of taking part in psychological warfare against the United States through participating in the recording of radio drama. The argument was advanced, inter alia, that defendant had signed an oath or affirmation of allegiance to Germany, and that this brought about a dissolution of her citizenship and allegiance to the United States. It was held that the trial court did not err in instructing the jury that the statement being vague and informal, it did not come within the purview of Section 401 of the Nationality Act of 1940, Title 8 U.S.C.A. § 801(b).
ate to deprive her of her United States
Litigation on questions of expatriation usually occur in a different setting. The "citizen” is usually seeking to assert that his citizenship was not lost by some act which is alleged to amount to expatriation. In Mackenzie v. Hare, supra, plaintiff in error contended that an act of Congress which provided that any American woman who married a foreigner should take the nationality of her husband, did not oper-citizenship on marriage to a subject of Great Britain since, if so intended, it was beyond the authority of Congress. The Supreme Court there stated that it should hesitate long before limiting or embarrassing such an attribute of sovereignty. While it was conceded that a change in citizenship could not be arbitrarily imposed, without the concurrence of the citizen, it was held that the law in question did not have that feature, since it dealt with a condition voluntarily entered into.
In Perkins v. Elg, supra, Marie Elizabeth Elg, who was born in the United States of parents who were natives of Sweden, was taken by her mother to Sweden while still a minor. Shortly after attaining majority, she returned to the United States on an American passport, and was admitted as a citizen. Later, on being threatened with deportation, she sought a declaratory judgment to establish United States citizenship. In holding that United States citizenship was not lost, the Supreme Court stated 307 U.S. at page 329, 59 S.Ct. at page 887, 83 L.Ed. 1320: “* * * As municipal law determines how citizenship may be acquired, it follows that persons may have a dual nationality. And the mere fact that the plaintiff may have acquired Swedish citizenship by virtue of the operation of Swedish law, on the resumption of that citizenship by her parents, does not compel the conclusion that she has lost her own citizenship acquired under our law. As at birth she became a citizen of the United States, that citizenship must be deemed to continue unless she has been deprived of it through the operation of a treaty or congressional enactment or by her voluntary action in conformity with applicable legal principles * *
This quotation indicates three ways by which, at the time it was written, expatria[514]*514tion or loss of citizenship could occur: (1) through operation of a treaty; (2) through congressional enactment; (3) through voluntary action in conformity with applicable legal principles.
It is not contended nor are we aware of •any treaty between Japan and the United States which would have application to this particular issue. See Title 8 U.S.C.A. § 810. The reference to a third means of expatriation is foreclosed by the provision in the Nationality Act of 1940, enacted since Perkins v. Elg was written, providing that the means therein provided shall be exclusive. See Title 8 U.S.C.A. § 808, set out in footnote 9, supra. Thus, Ka-wakita’s alleged loss of United States 'citizenship could only be claimed by virtue of some free and voluntary act on his part which, by the Congressional Act, would be ground for expatriation.
In Savorgnam v. United States, 1950, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287, it was held that a native born American citizen who voluntarily obtained Italian citizenship through naturalization in accordance with Italian law, had expatriated herself under the laws of the United States, but acts which would seemingly expatriate under the Nationality Act of 1940 have been held not to have such effect where the element of duress or lack of free choice existed. In Acheson v. Murakami, 9 Cir., 1949, 176 F.2d 953, we upheld a judgment cancelling the renunciation of citizenship by American born persons of Japanese descent, made while they were incarcerated pursuant to civilian exclusion orders issued during World War II. See Kiyoshi Hirabayashi v. United States, 1942, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774. The renunciations not being given as a result of free and intelligent choice, but rather because of mental fear, intimidation and coercion, they were held void and of no effect. See Attorney General of the United States v. Ricketts, 9 Cir., 1947, 165 F.2d 193.
Voting in a Japanese election, and service in the Japanese army, acts falling within paragraphs (c) and (e) of Section 401 of the Nationality Act of 1940,10 have been held not to expatriate where the acts were done under duress. Hatsuye Ouye v. Acheson, D.C.Hawaii, 1950, 91 F.Supp. 129; Etsuko Arikawa v. Acheson, D.C.Cal.1949, 83 F.Supp. 473; Yoshiro Shibata v. Acheson, D.C.Cal.1949, 86 F.Supp. 1; see In re Gogal, D.C.Penn.1947, 75 F.Supp. 268.
Meiji Fujizawa, who testified at the appellant’s trial, was a childhood friend of the appellant. Though his case closely parallels Kawakita’s in some instances there are differences. Fujizawa was born in Imperial County, California, of parents who were bom in Japan, and following his graduation from high school in 1939, went to Japan to further his education. Prior to leaving the United States' he officially renounced his Japanese nationality. He, like Kawakita, attended Meiji University and graduated in September, 1943. When the war came on, funds from his parents in the United States ceased and he was required to find employment. He was informed that he could secure no employment unless he recovered his Japanese nationality. He made application for such recovery and upon its being granted, had his name entered upon the Family Register. He then procured employment as an interpreter at the Oeyama Nickel Industry Company, Ltd., where he remained until VJ day. Unlike Kawakita, it appears that Fujizawa assisted the American prisoners in many ways by obtaining for them medical supplies and food.
In 1947 Fujizawa applied to the United States consulate in Japan to be reinstated as a United States citizen, and his application being denied, he brought an action in the United States district court to establish his claim to United States citizenship. The government contended that Fuj-izawa lost his United States citizenship since his petition for restoration of Japanese citizenship was “ * * * Obtaining naturalization in a foreign state * * * ”, within the meaning of Section 801(a), of Title 8 U.S.C.A. The district court, stressing the principle that acts on their faces tending toward expatriation must be free and voluntary, held that Fujizawa had no [515]*515intent to renounce his United States citizenship. Meiji Fujizawa v. Acheson, D.C.Cal. 1949, 85 F.Supp. 674. There was no appeal. There is nothing in the Fujizawa case which supports the theory that Kawakita’s act of entering his name on the Family Register accomplished his expatriation. The evidence is quite clear that he had no thought that it did either when he acted to have his name entered or after-wards. In leaving the country of his birth, Kawakita’s purpose was to visit his aged grandfather in Japan. There he remained to prepare himself for the export-import business in the United States. After entering the University in Japan, he again swore allegiance to the United States when he renewed his United States passport in 1941, and claimed citizenship in the United States when the war was over.
We hold that there was evidence in the case justifying the jury finding that Kawakita was a citizen of the United States owing allegiance to the United States during the period in suit.11
III.
Did Kawakita Adhere to the Enemy? Kawakita is not -charged with levying war against the United States. The acts found to have been committed are said to be acts showing adherence to the enemy, giving them aid and comfort.
In Cramer v. United States, 1944, 325 U.S. 1, at page 28, 65 S.Ct. 918, 932, 89 L.Ed. 1441, the court stated: “Treason of adherence to an enemy was old in the law. It consisted of breaking allegiance to one’s own king by forming an attachment to his enemy. Its scope was -comprehensive, its requirements indeterminate. It might be predicated on intellectual or emotional sympathy with the foe, or merely lack of zeal in the cause of one’s own country. That was not the kind of disloyalty the framers thought should constitute treason. They promptly accepted the proposal to restrict it to cases where also there was conduct which was ‘giving them aid and comfort’.
******
“Thus the crime of treason consists of two elements: adherence to the enemy; and rendering him aid and comfort. A citizen intellectually or emotionally may favor the enemy and harbor sympathies or convictions disloyal to this country’s policy or interest, but so long as he -commits no act of aid -and comfort to the enemy, there is no treason. On the other hand, a citizen may take actions which do aid and comfort the enemy — making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and- the hundred other things which impair out -cohesion and diminish our strength — but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason.”
Intent to adhere to the enemy is required in treason. This element of the -crime, since it concerns state of mind, is not subj ect to the two-witness requirement. Cramer v. United States, supra 325 U.S. at page 31, 65 S.Ct. at page 933. Where the overt act charged is of an equivocal or innocent nature in itself, as in the Cramer and Haupt12 cases, other compelling evidence is required in order to make out the intent to betray. Where, however, as here, the acts found to have been committed are themselves of such a nature as to give rise to strong inferences of a disloyal state of mind, the problem is less difficult. And there is, in addition, the testimony of witnesses introduced by the Government of various statements made by Kawakita as indicative of his state of mind. We set them out in the footnote.13 [516]*516They constitute compelling- evidence that appellant’s acts sprang from a harbored intent to betray his native country.
IV.
Did Kawakita Give Aid and Comfort To the Enemy?
The giving of aid and comfort may be defined as conduct or an act which strengthens or tends to strengthen the enemy of the United States and which weakens or tends to weaken the power of the United States to resist or to attack its enemies. Cramer v. United States, supra, 325 U.S. at pages 28, 29, 65 S.Ct. at pages 931, 932, 89 L.Ed. 1441. The minimum function of the overt act is that it show action by the accused which really gave aid [517]*517and comfort to the enemy. Cramer v. United States, supra 325 U.S. at page 34, 65 S.Ct. at page 934.
We turn to cases, with World War II for their background, to test the sufficiency of the overt act found to have been committed in our case. The earlier cases are referred to in the footnote.14
In Stephan v. United States, 6 Cir., 1943, 133 F.2d 87, certiorari denied 318 U.S. [518]*518781, 63 S.Ct. 858, 87 L.Ed. 1148, rehearing denied 319 U.S. 783, 63 S.Ct. 1172, 87 L.Ed. 1727, the indictment which charged the defendant, inter alia, with receiving, furnishing hospitality and entertainment, money, necessities of life to an escaped German prisoner of war, concealing his identity, arranging for his transportation and failing to report him to officials, all in the United States, was held sufficient to charge the defendant with .the crime of treason.
Cramer v. United States, supra, was the first occasion on which the Supreme Court reviewed a conviction of treason. Overt acts consisting of meeting and conferring with two Germans who had landed on the shores of the United States for the purpose of sabotage were held to be insufficient as proved to support the judgment of conviction.
But in Haupt v. United States, supra, the Supreme Court held that overt acts consisting of furnishing harbor and shelter, assisting in obtaining employment and helping to buy an automobile, all for defendant’s son who was in the United States on a mission of sabotage for Germany, were sufficient overt acts to sustain a conviction of treason. “They have the unmistakable quality”, the court stated 330 U.S. at page 635, 67 S.Ct. at page 876, 91 L.Ed. 1145, “which was found lacking in the Cramer case of forwarding the saboteur in his mission.”
Chandler v. United States, 1948, 1 Cir., 171 F.2d 921, certiorari denied 336 U.S. 918, 69 S.Ct. 640, 93 L.Ed. 1081, rehearing denied, 336 U.S. 947, 69 S.Ct. 809, 93 L.Ed. 1103; United States v. Burgman, D.C.D.C., 1949, 87 F.Supp. 568; Gillars v. United States, C.A.D.C., 1950, 182 F.2d 962, and Best v. United States, 1 Cir., 1950, 184 F.2d 131, all involved acts of broadcasting German propaganda to the United States in the hope of weakening the United States’ war effort by sowing discontent with the government, impairing the morale of the armed forces, and creating dissension among the allied countries. Convictions were had in all of these cases.
Since the jury returned a special verdict as to each overt act found to have [519]*519been committed, the conviction must be sustained if there was a single sufficient, well-proved overt act committed by Kaw-akita, Haupt v. United States, supra, 330 U. S. at page 641, 67 S.Ct. at page 878, 91 L.Ed. 1145; Chandler v. United States, supra.
Overt act labeled (b) in the indictment, on which the jury returned a verdict of “guilty”, consisted of participation in knocking an American prisoner of war into the camp drain or cesspool, and striking and beating him as he attempted to get out. Much is made of the fact that this treatment was administered as punishment for the infraction of camp rules, namely, for extracting needed food from Red Cross packages sent for but withheld from him in a storehouse. It is true that the convention relating to prisoners of war signed at Geneva, July 27, 1929, provides that prisoners of war shall be subject to the laws, regulations, and orders in force in the armies of the detaining power.15 Sec. V, Chap. 3, Article 45. The same agreement provides, however, that punishments other than those provided for the same acts for soldiers of the national armies may not be imposed. Any corporal punishment, any form of cruelty, is forbidden. Sec. V, Chap. 3, Article 46.
For reasons stated below, we hold that the jury could reasonably find that this act alone, in its setting, amounted to aid and comfort to the enemy.
Our review is not limited to a finding of the sufficiency of a single act. Our discussion applies with comparative force to each of the overt acts upon which the jury returned its verdict of guilty: the brutal kicking of Phillip D. Toland in an attempt to compel him to greater exertion in his work [overt act (a)]; the beatings inflicted upon prisoners for using blankets to make 'crude socks and mittens as protection against the extreme winter weather prevailing at Oeyama [overt act (c) ] ; the beating of Thomas J. O’Connor to the point of insensibility [overt act (d) ] ; forcing David R. Carrier and George W. Simpson to run additional times around the camp quadrangle while in a weakened condition to the point of exhaustion [overt act (g)] ; the denial of medical care to Johnie T. Carter who lay helpless and in pain from a spinal injury received in the course of his enforced labors [overt act (i)]; the beating of John J. Armellino who, because of illness, was unable to carry the required load [overt act (j)]; participation in inflicting inhuman punishment on Woodrow T. Shaffer [overt act (k)]. These deeds do not indicate reluctant conformity by one who by circumstance finds himself in the camp of the enemy. Separately and cumulatively they reflect the purposeful fulfillment of a desire to give as much aid and comfort to the enemy as was possible in the setting, and indicate a state of mind in keeping with the crime charged.
We are mindful of the fact that appellant was not in a policy-making position. However he is not here charged with vicarious liability for the manner in which the prisoner of war camp was conducted. His conduct consisted of personally, and beyond the duty of his employment, willingly assisting the Japanese military in administering cruel and unusual treatment upon weakened United States prisoners of war. The evidence reveals that he enthusiastically deviated from his duties as interpreter in order to participate in the drastic treatment imposed upon the Americans for minor infractions of camp dis[520]*520cipline. Appellant’s own testimony supports the conclusion that he did not act from personal animosity, but was manifesting ¡his attitude toward the country to which he owed allegiance. These acts amounted to as much aid and comfort to Japan as the appellant was able to give in the circumstances, and, through their effect on the prisoners of war at the camp, furthered the Japanese war effort by coercing greater effort toward extracting war-needed ore from the mine. The overt act essential in the crime of treason is present if the act is intended to and does afford aid and comfort to the enemy within the circumstances. Haupt v. United States, supra. The fact that the acts committed by appellant were not of a nature to be decisive of the war or of such a nature as to, in themselves, turn the tide of war, does not cast them as untreasonable.
V.
Was the Two-Witness Requirement Satisfied?
The Constitution of the United States requires that “ * * * 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”.16
We hold that there was presented the required testimony of two witnesses to the overt act labeled (b) in the indictment. While there is some understandable uncertainty as to the exact date, there is little question about the exact occasion and as to the conduct of Kawakita on that occasion.
The indicment charged that the act took place during the latter part of April, 1945, with the exact date unknown. The Constitutional requirement was fulfilled by the following testimony:
Witness John L. McCoy recalled that in “April or May”, 1945, he returned to camp with a working party and saw Grant standing in the cesspool. He stated, “Kawakita was standing on the side of the pool hitting Grant on the head when I saw him, and telling him to duck. Grant looked like he was stunned. He didn’t seem to understand. He just stood there and shivered and Kawakita hit him repeatedly on the head.”
Witness Phillip D. Toland stated that “around the month of May”, 1945, at suppertime he “saw Kawakita pushing Grant’s head into the water with the long wooden stick he had.”
Witness James T. Phillips testified that “Sometime in May or June”, 1945, about 4:30 or 5:00 in the evening, he saw Kawa-kita strike Grant about three times and push him into the cesspool with a “wooden sword”.
Witness James A. Caire recalled that in May, 1945, in the afternoon at about 4:00 o’clock, he saw the defendant hit Grant knocking him into the cesspool, and that he was made to stay there by Kawa-kita, using a “wooden sword”.
Witness David R. Carrier stated that around 4:00 o’clock on an afternoon in May, 1945, he saw Kawakita strike Grant twice near the cesspool.
Witness Morton Feinberg testified that sometime in April of 1945, in the afternoon, he saw Kawakita punch Grant and knock him into the cesspool.
Witness William Gage, Jr., testified that between 4:30 and 5:00 in the afternoon, in the middle of May, 1945, he saw Kawa-kita strike Grant three or four times in the cesspool, with a bamboo pole.
Witness Gid H. Spurlock testified that around in April, 1945, he observed Grant trying to get out of the water in the cesspool, and Kawakita pushed him back with his “saber”.
Witness George W. Mayo recalled that “sometime in April or May of 1945” he observed Kawakita strike Grant in the chest with a cane or “wooden saber”.
Witness Alexander Holik testified that in April, 1945, between 5:00 and 6:00 in the evening he saw Kawakita shove Grant into the cesspool and swing his saber at him a couple of times.
[521]*521Witness Woodrow T. Shaffer testified that in the latter part of April, 1945, he saw Kawakita strike Grant and knock him into the cesspool, and strike him with a stick when he refused to submerge.
Witness David Huddle testified that in April, 1945, around 4:30 or 5:00 o'clock in the afternoon he saw Kawakita ¡hitting Grant over the head with a wooden sword while Grant was in the cesspool.
It would unduly and uselessly lengthen this opinion to set out the testimony of each witness to each overt act found to have been committed. We have carefully studied the testimony from the long record and find a plurality of witnesses to-each of the alleged overt acts which the jury found to have been committed by appellant.
VI.
Was There Impropriety In the Jury Proceedings?
Appellant makes numerous contentions' of error committed in the jury proceedings. It is contended that the jury was coerced; that the court erred in the instructions given while the jury was deliberating; that the jury separated while deliberating. We set out relevant portions of the jury proceedings in the footnote.17
[522]*522The issue of coercion of the jury in the manner claimed is one which has received numerous and varied treatment in the federal courts, but reasonably clear principles evolve from the decisions. In Allen v. United States, 1896, 164 U.S. 492, 17 S.Ct. [523]*523154, 41 L.Ed. 528, it was urged that certain instructions given to the jury after the main charge was delivered, and when the jury had returned to the court for further instructions, were error. These instructions were in substance: That in a
[524]*524large proportion of cases absolute certainty could not be expected; that although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with [525]*525candor and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other’s arguments; that, [526]*526if much the larger number were for 'Conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority was for 'acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not 'concurred in by the majority.
It was held that there was no error in these instructions. The court stated 164 U.S. at page 501, 17 S.Ct. at page 157: “While, undoubtedly, the verdict of the juror should represent the opinion of each individual juror, it by no means follows that opinions may not be changed by conference in the juryroom. The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror should not listen with deference to the arguments, 'and with a distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself. It cannot be that each juror should go to the jury room with a blind determination that the verdict shall represent his opinion of the case at that moment, or that he should close his ears to the arguments of men who are equally honest and intelligent as 'himself * '* *.” See Burton v. United States, 1905, 196 U.S. 283, 25 S.Ct. 243, 49 L.Ed. 482; Allis v. United States, 1894, 155 U.S. 117, 15 S.Ct. 36, 39 L.Ed. 91.
Appellant relies strongly on Bollenbach v. United States, 1946, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350. In that case a conviction was reversed because on inquiry from the jury, the trial judge gave an instruction which stated the substantive law involved incorrectly. That question is not presented in this case. Nor áre we faced with the problem presented in Brasfield v. United States, 1926, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345, where the court held that an inquiry by the trial judge to a jury un'able to agree, asking the extent of its division numerically, was ground for reversal, its tendency being coercive. The trial judge in the case before us cautioned the jury repeatedly against revealing their numerical division.
In Hyde v. United States, 1912, 225 U.S. 347, 382, 32 S.Ct. 793, 807, 56 L.Ed. 1114, it was contended that the verdict was a result of coercion by the court. The jury had returned to the courtroom and the foreman had announced that they were unable to agree. The court instructed the jury to retire for further deliberation, and make another effort to agree upon a verdict, charging them: “ * * * that should they render a verdict, it must be one to which they all freely agreed; that the law would not recognize a coerced verdict or one which was not the free expression of the views and opinions of the jurymen, and that if, after 'another conscientious effort, the jury still fail to agree, they should return to the court and so state. That it was not the purpose of the court to unduly prolong their deliberations, and that if they could not conscientiously and freely agree upon a verdict, they would be discharged.”
Several hours later they were brought into court and again declared they were unable to agree, and the court instructed them [527]*527further, after consultation with counsel, suggesting a consideration of the possibility of the guilt of some of the defendants and not of others. A short time later, the jury returned a verdict of guilty as to certain of defendants and not guilty as to others.
The Supreme Court rejected the contention that the jury was coerced by the court. The court stated 225 U.S. at page 383, 32 S.Ct. at page 808: “ * * * It is true the trial was a long one and that the jury were not allowed to separate. Neither fact is unusual in criminal trials; the first is often necessary, the second often expedient, and contributes to an impartial judgment for and against defendants. It is true that the jury was in consultation for three days and nights without agreement, but the case was unusual in its issues and evidence and the detailed attention that was required.
“It well might be that jurors should not see the exact bearing of the evidence as it affected particular defendants until the final instructions of the court, which we have set out and about which counsel were consulted. The court took care to say to the jury that the law would not recognize a coerced verdict, and that it was not the court’s intention to unduly prolong their deliberations, and if, after another effort, 'they could not conscientiously and freely agree upon a verdict, they would be discharged.’ It is hard to believe that with that admonition yet in their ears they bartered their convictions, with that promise expressly made to them, they were coerced by a threat of confinement to acquit those who they were convinced were guilty, or convict those who they were convinced were innocent.”
In United States v. Haupt, 7 Cir., 1946, 152 F.2d 771, 779, a conviction of treason was attacked because the jury deliberated 28 hours without sleep. The judgment was affirmed. It was held that the case was one which necessitated extended deliberation of the jury, considering the length of the trial, the number of issues, the seriousness of the offense, and the responsibility of each juror. The Supreme Court dismissed the same contention in a sentence. Haupt v. United States, 1946, 330 U.S. 631, 643, 67 S.Ct. 874, 91 L.Ed. 1145, rehearing denied 331 U.S. 86418, 67 S.Ct. 1195, 91 L.Ed. 1869.
While there is language in Peterson v. United States, 9 Cir., 1914, 213 F. 920, which seems to support the appellant, the import of the language there used is fully explained in our later expression in Shea v. United States, 9 Cir., 1919, 260 F. 807, which reviews the Supreme Court decisions more fully.
The contested instructions were not coercive in effect. They were given on Monday, August 30, 1948. The final words of the trial court on this occasion were that no juror was expected to surrender his honest convictions if, after full deliberation and attention to the views of his or her fellow jurors, he or she remained convinced of the correctness of his stand. The verdict was not rendered until 3:45 P.M. on Thursday, September 2, 1948. The jury agreement after three days had elapsed following the final instruction to the jury, as it seems to us, was because the jurors came to agreement after the storms of personality clashes had been cleared away by the presiding judge. No complaint was made nor was any indication given to the effect that personal differences occurred during this period. It is far more likely that the earnest and thorough talk to the jury by the judge [528]*528impressed the members with their duties tc eliminate personal -conflict of temperament and weigh the evidence in the cold scale of impersonal logic. Had the judge deviated in but a comparatively small degree from a plain and unimpassioned appeal to the jury members to eliminate personal antagonisms and get down to earnest consideration of the evidence and the instructions, a strong case would have been made on this assignment of error. We do not underestimate the strength of the argument made on this assignment. But there is nothing tangible in the record to override the presumption that the verdict returned was the result of honest and conscientious agreement of twelve minds. The proceedings speak eloquently of the clash of strong, unappeasing minds at work on a decision which required the closest adherence to “The Still, Small Voice Within”. We do not regard the lapse of time as decisive in the case.
There was no improper separation of the jury during the trial. The purpose of keeping a jury in one body during the trial and not permitting the members to separate except under the supervision of the bailiff or officers of. the court, is to make sure that nothing shall influence them in the consideration of the case. Baker v. Hudspeth, 10 Cir., 1942, 129 F.2d 779, certiorari denied Baker v. U. S., 312 U.S. 692, 61 S.Ct. 711, 85 L.Ed. 1128, rehearing denied 312 U.S. 715, 61 S.Ct. 731, 85 L.Ed. 1145. The fact that a juror was permitted to go to the barber shop under the supervision of a bailiff, and that other jurors were permitted to see a doctor under supervision of a bailiff does not give rise to a finding that the jurors were subjected to prejudicial influence. Allowing jurors to maintain reasonable standards of health and cleanliness under court supervision is a necessary adjunct of the jury system.
So far as the record discloses, the conduct of the court and its rulings on the trial were fair and considerate of the rights of the defendant. In none of the matters referred to do we find error.
VII.
Was the Punishment Excessive?
Title 18 U.S.C.A. § 2, Act of March 4, 1909, c. 321, § 2, 35 Stat. 1088, provided:19 “Whoever is convicted of treason shall suffer death; or, at the discretion of the court, shall be imprisoned not less than five years and fined not less than $10,000, to be levied on and collected out of any or all of his property, real and personal, of which he was the owner at the time of committing such treason, any sale or conveyance to the contrary notwithstanding; and every person so convicted of treason shall, moreover, be incapable of 'holding any office under the United States.”
The appellant contends that the sentence imposed is arbitrary. We think not. So long as it is within the limits prescribed by the statute it is not legally excessive. Vlassis v. United States, 9 Cir., 1925, 3 F.2d 905. No legal error is committed in imposing a severe sentence so long as it does not exceed the maximum set by statute. Cardenti v. United States, 9 Cir., 1928, 24 F.2d 782. Consult Stephan v. United States, 6 Cir., 1943, 133 F.2d 87, certiorari denied 318 U.S. 781, 63 S.Ct. 858, 87 L.Ed. 1148, stay of execution ordered, 318 U.S. 746, 63 S.Ct. 984, rehearing denied 319 U.S. 783, 63 S.Ct. 1172, 87 L.Ed. 1727, execution ordered D.C., 50 F.Supp. 738; Capone v. United States, 7 Cir., 1931, 51 F.2d 609, 76 A.L.R. 1534, certiorari denied 284 U.S. 669, 52 S.Ct. 44, 76 L.Ed. 566; Cochran v. United States, 8 Cir., 1930, 41 F.2d 193; Muench v. United States, 8 Cir., 1938, 96 F.2d 332; United States v. Sorcey, 7 Cir., 1945, 151 F.2d 899, 902, certiorari denied 327 U.S. 794, 66 S.Ct. 821, 90 L.Ed. 1021. We hold that the record is free from reversible error.
The author of this opinion 'having immersed himself in the long record of this case feels it proper for himself alone to say that the trial proceedings reflect credit upon the trial judge and all of the attorneys for both the government and the defendant-appellant. A special word of commendation is due the attorney for de[529]*529fendant-appellant who with inadequate compensation and in the interests of justice spared no effort or time on. behalf of his client.
The judgment is affirmed.