(dissenting).
“But the basic law of treason in this country was framed by men who, as we have seen, were taught by experience and by history to fear abuse of the treason charge almost as much as they feared treason itself.” Cramer v. United States, 325 U.S. 1, 21, 65 S.Ct. 918, 928. Acting on such fear, treason was deliberately made a difficult crime to prove by providing in the Constitution: “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.” The opinion by which this judgment is to be affirmed is a striking illustration that the fear entertained by the makers of the Constitution was well founded. The reasoning of the opinion is, in my judgment, so grievously and palpably erroneous that I find myself compelled to dissent. The opinion states that it is “unfortunate that the trial occurred before the decision in *800Cramer v. United- States.” Presumably this means that the trial court would have tried the case on a different theory if it had had the benefit of .that decision. I doubt not that such would have been the case. In this connection, it can be said with equal propriety that it is even more unfortunate that the majority of this court in their zeal to affirm this conviction have been faced with the law of treason as announced in that decision.
Defendant was entitled to have the question of his guilt determined by a jury in accordance with the law and the Constitution pertaining to treason. As I view the matter, the function of this court is confined solely to the question as to whether his guilt was thus determined. If not, the judgment should be reversed, irrespective of any personal opinion we may entertain on that issue. Any other view amounts to usurpation of the province of the trial court and the jury. If this view be correct, the conclusion to affirm receives little, if any, support from the voluminous recitals of the opinion designed to show that the defendant is guilty.
I shall therefore overlook numerous erroneous statements and innuendoes found in the opinion and come at once to a consideration of certain legal questions with which I take issue and which, in my judgment, require a reversal. These legal questions no doubt arise in the main from the fact that the case was tried and a conviction obtained upon a theory diametrically opposed to that on which the government seeks an affirmance in this court. The case was tried and the jury was instructed (instructions will, be hereinafter discussed) on the theory that proof of one or more overt acts by the direct testimony of two witnesses was sufficient to authorize a conviction. In seeking an affirmance in this court, it is conceded by the government that such is not the law and that a reversal is required if there was a failure of proof as to any one of the overt acts submitted. While it is difficult to be certain on what theory the judgment is affirmed due to the inconsistent conclusions which are reached, it is my understanding that the majority embrace and affirm on each of these incompatible theories.
I shall therefore first show the theory upon which the case was presented to this court and later that upon which it was tried. Twelve overt acts were submitted to the jury. The judgment rests upon the jury’s general verdict of guilty. No position was taken by the government in its original brief as to whether the judgment could be sustained in the event this court concluded there was a failure of proof as to one or more of such acts. During oral argument an inquiry was specifically directed to government counsel concerning such an eventuality and leave was granted to the parties to file a supplemental brief directed solely to this question, which brief was filed by the government October 26, 1945. In order to dissipate some of the fog created by the opinion, I quote from this supplemental brief:
“During the oral arguments in the above-entitled cause our attention was directed to the question of whether or not, if any of the overt acts, either as alleged or proven, submitted to the jury as possible overt acts upon which it could base a conviction for treason, were insufficient, it would be necessary for the court to reverse the conviction. We have therefore addressed ourselves to that problem, keeping in mind Instruction No. 51 (Bill of Exceptions 1591), by which instruction the jury were told:
“ ‘It is not necessary for the Government to prove by two witnesses the performance of more than one of the submitted overt acts, providing, of course, the other elements of the alleged crime are proven beyond a reasonable doubt as heretofore defined in these instructions.’
“It would seem from a review of the authorities, including Cramer v. United States, 325 U.S. 1, 65 S.Ct. 918, 935, 89 L.Ed. -, footnote 45; Stromberg v. California, 283 U.S. 359, 368, 51 S.Ct. 532, 75 L.Ed. 1117, 73 A.L.R. 1484; Williams v. North Carolina, 317 U.S. 287, 292, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273 ; and Roth v. Swanson, 8 Cir., 145 F.2d 262, 269, that the failure to prove or the insufficiency of any of the submitted overt acts would require a reversal of the conviction.”
Certainly there can be no doubt but that the government after due deliberation with honesty and frankness conceded that a failure of proof as to one or more of the overt acts submitted would require a reversal. In fairness to the government, it should be stated that it was also urgently insisted, as had been done in the original brief, that all of the submitted acts were properly proven. Furthermore, as I un*801derstand, it was and is the government’s contention that instruction 51, which embodies the theory on which the case was tried in the court below, was not prejudicial error because all of the submitted acts were adequately proven.
That the opinion recognizes the government’s concession as sound and as the law of the case is also clear. The opinion states:
“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.”
Also:
“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.”
At this point I challenge the statement, “on one theory which has been advanced by government counsel.” This at least implies that the government presented to this court both of these inconsistent theories as grounds for affirmance. Such is not the case. This double-headed monstrosity was conceived in this court and not in the mind of government counsel.
At another point the opinion points out that the prosecution might have withdrawn several of the alleged overt acts charged in the indictment and made its conviction less vulnerable to attack. Unless the author of the opinion thought that proof of all the overt acts was required, how can it be said that a withdrawal of some of the acts would have made the government’s position less vulnerable to attack ? Also, the theory on which the case was tried did not require the exercise of such judgment on the part of either counsel for the government or the trial court. By that theory it was sufficient if only one of the overt acts submitted was properly proven.
Furthermore, the opinion sets forth each of the twelve overt acts and relates, in detail all of the evidence found in the record, which it is thought proves each. If an affirmance of this judgment is to be had on the theory here advanced by the government, this would seem essential. If, on the other hand, the judgment is to be affirmed upon the theory.on which the case was tried, the setting forth of this voluminous testimony is an idle and useless gesture.
True, the author of the opinion appears to have been in some doubt as to the purpose of reciting all of the submitted overt acts, together with the proof relied on in support of each. Prior to so doing, the opinion states that it.is for the purpose of determining “if the requisite constitutional measure of proof was adduced by the Government.” After consuming some eighteen pages in detailing this testimony, it evidently was discovered that it was for some other purpose. The opinion states:
. “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.” (Italics supplied.)
Whether the narration of this voluminous testimony was for the purpose of sustaining the government’s theory, as stated at one point in the opinion, or whether it was for the purpose of disproving the defendant’s theory, as stated at another point in the opinion, is really unimportant. The main point is that the effort was without purpose except in recognition that an af-firmance could be had only upon adequate proof that each of the submitted overt acts had been proven.
Having shown that the majority (up to this point) proceed on the theory that the judgment can be sustained only by the direct testimony of two witnesses to each of the submitted overt acts, I now reach the first major premise with which I take is*802sue. For the purpose of such issue, I am willing to assume that the overt acts as alleged are legally sufficient, as the majority have found. Ip other words, if that were the only question involved, I would not dissent, notwithstanding the dubious propriety of. such a holding in view of the Cramer case. Especially is this so as to the acts which charge that Herbert Haupt was hapbored and sheltered in the home of his father (and mother). No claim is made and there is no proof that he was concealed in this home; on the other hand, the testimony indicates that he entered and departed therefrom the same as any son might be expected to do. There is proof that he was on one occasion furnished food to eat and a bed in which to sleep. Just how the action of his parents in this respect was of any assistance to the government of Germany or any harm to the United States is not easy to discern. I suppose.in order to have escaped a charge of treason it would have been incumbent upon the parents to have slammed the door to their home in his face. Even this would not have been sufficient under the reasoning of the majority if perchance they had given him a sandwich to eat as he made his departure.
The opinion on its face, however, is so clearly wrong in its conclusion that all the submitted acts were properly proven that I pass to that question. As the opinion concedes, on this phase of the case a reversal is required if one or more of the acts are without sufficient support. I shall therefore direct my discussion only to acts 12, 17, 20, 21, 22 and 23, the so-called harboring acts. These acts are all in substantially the same phraseology except that each designates a different date. They each charge that on a certain date the defendant “harbored and sheltered the said enemy Herbert Haupt at the home of Hans Max Haupt, 2234 N. Fremont Street, Chicago, Illinois.” The dates alleged are: in overt act 12, June 22, 1942, in overt act 17, June 23, 1942, and in overt acts 20 to 23, inclusive, June 24 to June 27, 1942, inclusive. As heretofore stated, the majority opinion sets forth in detail the proof held to supply the requisite support for each act. For the purpose of my position, I think it rqay be safely assumed that the record has been carefully searched and all the testimony offered in support of each act properly and fully set forth.
At this point it is pertinent to observe that the entrance to 2234 N. Fremont Street, set forth in each of these acts and oftentimes referred to by the witnesses, is not the entrance to the apartment occupied by the Haupts but is the entrance to a 3-story apartment building, and that the home of the Haupts was the third floor apartment reached by a stairway which extended from the entrance-of the apartment building to and by each of the other apartments, that is, one located on the first and the other on the second floor.1 In considering the testimony relied upon by the majority in support of'these various overt acts, it should also be kept in mind that they are each separate and distinct, and in accordance with the constitutional mandate must be proven by "the testimony of two witnesses to the same overt act or on confession in open court.”
“Every act, movement, deed, and word of the defendant charged to constitute treason must be supported by the testimony of two witnesses.” Cramer v. United States, supra, 325 U.S. at page 34, 65 S.Ct. at page 934. More than that: "The case of treason stands upon a peculiar ground; there, the overt acts must, by statute, be specially laid in the indictment, and must be proved as laid. The very act, and mode of the act, must, therefore, be laid as it is-intended to be proved.” United States v. Gooding, 12 Wheat. 460, 474, 25 U.S. 460, 474, 6 L.Ed. 693.
It would serve no useful purpose and would unduly prolong this discussion to point out the insufficiency of the proof as to each of these harboring overt acts. The evidence speaks for itself. I assert with confidence that the only one which is possibly supported by the direct testimony of two witnesses is act 17. As to that act, there is the testimony of two witnesses who were in the Haupt apartment and testified that Herbert Haupt was there with his parents. I suppose that proof of his presence in the apartment would constitute proof that he was harbored. As to the other five harboring acts, there is no direct proof. The evidence relied upon is entirely circumstantial. I call particular attention to overt act 23, which charges *803the defendant with harboring on June 27, 1942. The proof in support of this act is on its face glaringly insufficient.
As will be noted, the five witnesses whose testimony is relied upon by the majority in support of this act are all F. B. I. agents. Every word uttered by these witnesses which proved or tended to prove that Herbert Haupt was in the home of the defendant (the third floor apartment) on June 27, 1942 is purely circumstantial. There is not a word of direct proof in support thereof. More than that, it should not be overlooked that Hans Max Haupt and not Herbert Haupt is the defendant in this case, and there is not a scintilla of testimony, either direct or circumstantial, that the former was either in or about the apartment on this date. In fact, his name is not even mentioned by the witnesses. Just how the defendant was shown, by the direct testimony of two witnesses, to have committed this act, without even a mention of his name, is one of the several imponderabilities presented by the majority opinion.
The proof concerning overt act 12 is likewise wholly deficient insofar as it pertains to this defendant. There is no proof either direct or circumstantial that this defendant was in or about his apartment on June 22, the date alleged. As the proof related in the majority opinion in support of this act shows, three of the government witnesses testified that Herbert Haupt, together with his parents, made a short visit with the people who lived in the first floor apartment. Three F. B. I. agents testified to seeing Herbert Haupt and his parents enter the apartment building. One of these agents stated that on one occasion he saw Mrs. Haupt and Herbert enter the apartment building and shortly thereafter the lights in the Haupt apartment were extinguished. The proof relied upon in support of the other harboring acts (except act 17) is purely circumstantial, as a reading thereof will disclose.
It is easy to perceive the great difficulty experienced by the majority in bridging the gulf with which they were confronted by the holding in the Cramer case that an overt act could not be supported merely by circumstantial evidence but that it required, as a minimum, the direct testimony of two witnesses. It was essential, however, that the gulf be bridged if an affirmance was to be had. At this point it appears my brethren were on the verge of repudiating the direct testimony rule of the Cramer case. The opinion states:
“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.’ ”
This insinuation directed at the Cramer decision overlooks the fact that the dissenting opinion in that case takes no issue with this rule pronounced by the majority; in fact, the dissent by inference approves of it.
Moreover, the court in the Cramer case is not the first which has held that an overt act must be supported by the direct testimony of two witnesses. Judge Learned Hand (then a District Judge) in United States v. Robinson, D.C., 259 F. 685, so held. On page 694 of 259 F., he states:
“I conclude, therefore, that it is necessary to produce two direct witnesses to the whole overt act.”
He points out:
“ * * * the case rested upon circumstantial evidence, which, while well-nigh conclusive in fact, was not direct as required. There seems to me no question whatever that without disregarding the whole theory of the Constitution I could not allow a verdict to stand if I received it. I must therefore direct it for the defendant.”
Furthermore, it is difficult to think that any court could hold otherwise. To say that the two witness rule can be met by circumstantial evidence is to render meaningless the constitutional requirement. The strength of circumstantial evidence does not depend upon the number of witnesses. One such witness might make a strong case or, on the other hand, a dozen such witnesses might prove little or nothing. Therefore, reasoned on any rational basis, the precise act as alleged must be supported by the direct testimony of two witnesses.
Notwithstanding the insinuation that the direct evidence rule of the Cramer decision was wrong, the opinion proclaims, “We must, however, and do follow the court holding.” This profession, however, is of little consequence in view of what, follows. In summarizing the proof concerning these overt acts, the opinion states:
“As to several of these days (acts) there was simply the testimony of F.B.I. agents that they saw the saboteur, Herbert, and *804his father leaving and going into the front entrance of the six-apartment building wherein the Haupts lived.”
Then follows this remarkable pronouncement:
"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 samé 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.”
It will at once be noted that the majority completely ignore the law which requires that each overt act must be proved as laid. Instead they combine a number of circumstances, some shown with reference to one act and some another, and conclude that these circumstances are “direct testimony that said son was being quartered in the father’s home.” Still more remarkable, however, is the fact that the majority are willing to hold that these circumstances in their combined form are direct proof. If such be' the case, there is no longer any such thing as circumstantial evidence and all the court opinions and text books which have distinguished between direct and circumstantial proof might well be destroyed. It is another illustration of the lpngth to which my brethren are willing to go in order to affirm this conviction.
So at this point we have an unmistakable holding by the majority consistent with the government’s theory before this court that failure of proof by the direct testimony of two witnesses as to any of the overt acts submitted would require a reversal. With this proposition of law I agree. The majority escape the duty to reverse only by holding, erroneously I think, that all of the acts submitted were sufficiently supported. The majority, however, in escaping from one dilemma find themselves confronted with another, and that is the theory on which the conviction was obtained. Such theory is embodied in instructions 50 and 51. Instruction 50 authorized a conviction if “Hans Max Haupt with treasonable intent performed any of the above alleged overt acts submitted to your consideration and that two direct witnesses have testified to such act.” Instruction 51 (heretofore set forth in the quotation from the government’s supplemental brief) is of like effect.
Referring to instructions 50 and 51, the opinion correctly states:
“In essence, these instructions told the jury that they were to find the defendant guilty if they found he performed any one of the treasonable overt acts submitted, to-which acts two witnesses had testified.” Then follows the statement:
“If it were not for the fact that our study of the evidence as summarized above supports the jury’s verdict of guilt on any or all of the overt acts submitted, reversal would on this'theory follow.”
I confess my inability to comprehend this statement. “ * * * reversal would on
this theory follow.” What theory? The one on which the case was tried or the oné on which it was here submitted ?
It appears, however, that this is the first step in the process by which the majority are to shift their position. This they must do when faced with the dilemma presented by the instructions. The second step by which the shifting process was completed is immediately disclosed by the following statement:
“It follows, we think, that if the jury was satisfied by the necessary quantum of proof and by two witnesses, that one or more of the submitted overt acts were proven, the crime was established.”
If there be any doubt that their position has shifted, compare the conclusion just quoted with the following pronouncement previously made:
“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.”
Thus, instructions 50 and 51 are held to state properly the law of the case, notwithstanding the government’s concession that the “failure to prove * * * any of the submitted overt acts would require a reversal of conviction,” notwithstanding *805that the majority have heretofore held the concession made by the government to be the law of the case, and notwith-r standing the fact that the opinion devotes some eighteen pages in an effort to show that each of the overt acts submitted was supported by the direct testimony of two witnesses. The ability of my brethren to so abruptly and dexterously change horses is amazing. It seems to me that any kind of consistency would have required that this charge be held erroneous.
Without any apparent relevancy, it is also reasoned in support of these instructions that an overt act is not an element of the crime of treason. This is another illustration of the confused state of mind which has seized my brethren in the consideration of this case. It appears that the majority are of the view that an overt act need not be even alleged. It further appears from the argument on this point that they have decided that which is previously intimated, that is, the Cramer decision is bad law. As I read the Cramer decision, no single principle relative to the law of treason is so thoroughly established as that an overt act is an essential element of the crime. The majority so hold, at least by plain implication, and the minority so hold by direct statement. In the opinion of the former (page 29 of 325 U.S., page 932 of 65 S.Ct.), it is stated: “ * * * but so long as he commits no act of aid and comfort to the enemy, there is no treason.” In a footnote to the dissenting opinion (page 54 of 325 U.S., page 943 of 65 S.Ct.), it is stated: “It is well established that the overt act and the intent are separate and distinct elements of the crime of treason under the Constitution.” (Citing many cases.) More than that, as the Supreme Court held in United States v. Gooding, supra, the overt acts must be specifically laid in the indictment and must be proved as laid.
I agree with the government’s theory that all of the overt acts submitted to the jury must be proven as laid in the indictment. It follows from this that the court’s charge to the jury was fatally defective. As I have pointed out, there was a failure of proof by the direct testimony of two witnesses as to some of the acts submitted. Furthermore, even though all of the acts had been properly proven, as the majority have held, a reversal would still be required because of the erroneous instructions. An affirmance under such a situation means that the defendant has had a trial by this court on the acts submitted but not a trial by jury. While I have stated I agree with the government’s theory that all of the overt acts must be properly proven as laid, I also think that the only possible theory on which this judgment could be affirmed with any degree of consistency and without repudiating the express language of the Supreme Court would be by a forthright holding that the instructions properly stated the law of the case. The door to such a holding has been almost but not entirely closed by the Supreme Court. In the Cramer case 325 U.S. footnote page 36, 65 S.Ct. at page 935, the court held: “ * * * the verdict must be set aside if any of the separable acts submitted was insufficient.” Cited in support of this statement is Strom-berg v. Californiá, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, 73 A.L.R. 1484. The court in that case (page 367 of 283 U.S., page 535 of 51 S.Ct., 75 L.Ed. 1117, 73 A. L.R. 1484) stated:
“The verdict against the appellant was a general one. It did not specify the ground upon which it rested. As there were three purposes set forth in the statute, and the jury was instructed that their verdict might be given with respect to any one of them, independently considered, it is impossible to say under which clause of the statute the conviction was obtained.”
Thus it appears that in both the Cramer and Stromberg cases the court was referring to an act or charge without legal force. Although the question may not be free from all doubt, I am of the view that the same reasoning must apply in a treason case where the quantum of proof as to each overt act is prescribed by the Constitution. It is this fact which distinguishes treason from all other crimes. Such being the case, I am unable to differentiate between a situation wherein one of the acts submitted is legally insufficient and a situation wherein there is a failure as to one of the acts to meet the requirements of the Constitution in respect to proof. I am unable to believe but that a general verdict in one instance would be subject to the same deficiency as in the other. In either instance, the defendant would be deprived of a constitutional right.
The one certain thing about the opinion is that the judgment is at all hazards to be affirmed, because the majority think *806the defendant is guilty. In order to reach this goal, the opinion holds that all of the submitted overt acts must be proven by the direct testimony of two witnesses and that a failure of proof as to any one or more overt acts would require a reversal. It then holds that the court properly instructed the jury that it was authorized to convict the defendant if one or more of the submitted overt acts had been proven by the direct testimony of two witnesses. In order to sustain the conviction on the former theory, it was held that all of the submitted overt acts had been properly proven by the direct testimony of two witnesses. In doing' so, however, the opinion treats and holds as direct proof that which is purely circumstantial. In sustaining the court’s instructions to the jury, the theory on which the case was presented to this court, including the express concession of government’s counsel, has been repudiated. I am unable to join in a result brought about by such inconsistent and illogical reasoning. In my opinion, the constitutional provision on treason has been nullified and the decision of the Supreme Court in the Cramer case (both the majority and minority opinions) emasculated. This is so, notwithstanding that the opinion is replete with numerous protestations to the contrary.
I would reverse the judgment.
Actually, this 3-story apartment building contains six apartments, three in the rear and three in the front, and each set of apartments is reached by a separate stairway.