Opinion
No. 59.
November 21, 1945.
Appeal from the District Court of the United States for the Eastern District of New York.
Arthur Ausmeier and seventeen others were convicted of conspiracy to violate the Alien Registration Act of 1940 and they appeal.
Reversed and remanded.
Appellants were indicted for a conspiracy to violate the Alien Registration Act of 1940. The Conspiracy Act, 18 U.S.C.A. § 88, provides: "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both."
The Alien Registration Act of 1940, 8 U.S.C.A. § 451 et seq., reads in part as follows: Section 452(a): "It shall be the duty of every alien now or hereafter in the United States, who (1) is fourteen years of age or older, (2) has not been registered and fingerprinted under section 451 of this title, and (3) remains in the United States for thirty days or longer, to apply for registration and to be fingerprinted before the expiration of such thirty days." Section 457(c): "Any alien or any parent or legal guardian of any alien, who files an application for registration containing statements known by him to be false, or who procures or attempts to procure registration of himself or another person through fraud, shall, upon conviction thereof, be fined not to exceed $1,000, or be imprisoned not more than six months, or both * * *."
Regulations duly made pursuant to Section 458 required aliens applying for registration to answer questions on forms supplied by the Department of Justice. Among the required answers were the following:
No. 10: "I am, or have been within the past five years, or intend to be engaged in the following activities: In addition to other information, list memberships or activities in clubs, organizations, or societies."
No. 15: "Within the past 5 years, I ______________ been have, have not affiliated with or active in (a member of, official of, a worker for) organizations, devoted in whole or in part to influencing or furthering the political activities, public relations, or public policy of a foreign government."
The evidence at the trial showed that the Nazi Party, in the five years preceding and in 1940, had been conducting activities in the United States, including the New York area, regularly sponsoring festivals, and also political meetings at which Nazi propaganda films were shown. The evidence also showed that each of the defendants at some time during the five years before 1940 had had some association with the Nazi Party in the United States. Some were full-fledged members; others were so-called "anwaerters." The "anwaerters" were variously described as applicants, and probationary members. Each had signed an application blank in which he swore allegiance to the Fuehrer. Although they were said to be on "probation" for two years, they paid the same dues, received the same invitations and were eligible to attend the same meetings as the regular members. The German Consulate in New York was the headquarters of the Party in that general area, the leadership of the Party there being intrusted to the Consul, Draeger, and his secretary, Vogel. Both Draeger and Vogel were named in the indictment but had left the United States before the indictment was returned, and they were not brought to trial.
Before the effective date of the Alien Registration Act of 1940, letters were sent from the Consulate to the Party members and to the "anwaerters" in the New York area to appear at the Consulate so that they might be assisted in answering the questions on the registration form. The full members were advised by Draeger that they were to state, "Non-resident members of the N.S.D.A.P. in Germany. No activities in the U.S." The "anwaerters" were told that it was not necessary for them to mention the Party at all. Most of the appellants received this advice at the Consulate, but some of them procured this advice secondhand from those who had received it at the Consulate. All the appellants were, within the provisions of the Act, required to register.
The Nazi Party.
The following table shows the manner in which each of the appellants answered item No. 10 in the registration form:
Non-resident member Non-resident National Socialist Member National Labor Party in Germany. Innocuous Socialist Labor No activities None Organizations Party in Germany in the U.S.
Ausmeier Fischer Furrer Grein Karius Hannemann Kohnke Macke Muller Reid A. Reinfelder W. Reinfelder Schnell Schoettler Schuerzinger Pradel Seedorf Sturn
Kohnke originally answered "none" and "have not" to questions 10 and 15. Then, upon advice from the Consulate, he claims to have sent to the Justice Department an amendment to his registration in the same language as the heading of the final column, above.
Schnell's full answer after listing innocuous organization: "non-resident member of the National Socialists German Labor Party in Germany since 1933, 17 Battery Place, New York, N.Y. (no activities in the United States)."
The following table shows the manner in which each of appellants answered No. 15:
Non-resident member National Non-resident Socialist member National Labor Party Socialist in Germany. Labor Party No activities in Germany in U.S.
Ausmeier Fischer Furrer Grein Karius Hannemannfn4 Kohnke Macke Muller Reidfn4 A. Reinfelderfn4 W. Reinfelderfn4 Schnell Schoettlerfn4 Schuerzinger Pradel Seedorffn3 Sturn
These people were "anwaerters" or probationary members.
Schnell's full answer after listing innocuous organization: "non-resident member of the National Socialists German Labor Party in Germany since 1933, 17 Battery Place, New York, N.Y. (no activities in the United States)."
The judge's instructions to the jury were in part as follows:
"Now, I say that the charge is that these defendants conspired with Draeger and Vogel and other persons, and for the sake of accuracy, while I am not going to read the whole indictment, I am going to tell you what the indictment says about the conspiracy. It alleges — and, of course, you are now dealing only with the defendants on trial — that these defendants: `Within the jurisdiction of this court, and within the Southern District of New York, and within the District of New Jersey and other Districts to the Grand Jurors unknown, did knowingly, wrongfully, unlawfully, wilfully and feloniously combine, conspire, confederate and agree together and with each other and each with the other and with Friedhelm Draeger and with Hans Vogel and with Fritz Zeglin, and with the German Ambassador to the United States and with members of his staff and with other representatives of the Third German Reich, and with divers other persons to the Grand Jurors unknown, to defraud the United States in violation of law, as follows:
"`That during the summer of 1941, and continuously for upwards of five years immediately prior thereto, said Friedhelm Draeger was the German Consul at the City of New York and Kreisleiter or leader of the Auslands or overseas portion of the Nationalsozialistische Deutsche Arbeiterpartei (hereinafter called the Nazi Party) in the United States; and that, throughout the same period of time said Hans Vogel was secretary to said Friedhelm Draeger, and in such capacity, was engaged in matters concerning and affecting the operation and conduct of the said Nazi Party within the United States.
"`That continuously since early in 1933 the said Nazi Party within the United States held and conducted meetings, celebrations and other functions of a political and propaganda character, for the purpose of furthering the political activities, public relations and public policy of the Government of the Third German Reich, distributed and disseminated literature of like political and propaganda character, and was engaged in increasing its membership and influencing and furthering the cause of the said Third German Reich, the said Nazi Party and Adolph Hitler; and was during such period an organization in the United States devoted to fostering, defending, advocating and furthering the political activities, public relations and public policy of the said Third German Reich, the said Nazi Party and Adolph Hitler.
"`That, among other things, an aim and purpose of said Nazi Party in the United States was to inculcate and foster in German Nationals residing in the United States and, through them, in others, of German ancestry, loyalty, obedience, support and obligation of service to the Fuehrer of all Germans, the Nazi Party, and the Third German Reich.
"`That during the period of five years immediately preceding the fall and early winter of 1940, each of the defendants herein was a German National residing in the United States and was a member of and affiliated with said Nazi Party.
"`It was a part of said conspiracy and the plan and the purpose of the same, that each defendant herein well knowing the foregoing, and being required to register pursuant to the provisions of the Alien Registration Act of 1940, and of the regulations issued and promulgated in pursuance thereof, would in such registration deny, falsify, conceal, misrepresent, mislead, disguise, deceive, equivocate and cover up by trick, scheme and device, material facts relating to the existence, kind and extent of each defendant's membership in, connection and affiliation with, their activities in and the activities of the said Nazi Party within the United States, during the five-year period immediately preceding such registration, to the end that each defendant's affiliation with, membership and activities in, and the activities of said Nazi Party within the United States would be denied, concealed, covered up, falsified, misrepresented, suppressed, and disguised and to the further end that the United States and their agencies, departments and bureaus in the exercise of their governmental functions, be denied, have withheld from and be defeated in their effort to obtain accurate, complete, univocal, honest and correct * * * information sought and required in and by such registration, in a National Emergency, which registration was for the purpose of ascertaining the identity, location and activities of all aliens residing within the United States at the time of such registration and thereafter.
"`That it was a part of said conspiracy that the United States, their agencies, departments and bureaus, in the exercise of their governmental functions be defrauded, hampered, impeded, impaired, frustrated and obstructed as regards being supplied accurate, complete, univocal, honest and correct information concerning the defendants' membership and activities in, their affiliation with and the activities of said Nazi Party in the United States.
"`That it was a part of said conspiracy that said Draeger, Vogel, Zeglin, the German Ambassador to the United States and members of his staff, and others to your Grand Jurors unknown would advise, counsel, instruct, command and direct these defendants and others similarly situated, and that these defendants and such others would accept such advice and counsel and follow such instructions, commands and directions, to deny, falsify, conceal, misrepresent, mislead, disguise, deceive, equivocate and cover up by trick and device, their Nazi Party affiliation, membership and activities and said Party's activities, on forms supplied by the United States, their agencies, departments and bureaus for the registration of all aliens, pursuant to the provisions of said Alien Registration Act of 1940 and the regulations issued and promulgated in pursuance thereof.
"`It was a part of said conspiracy that these defendants and other members and affiliates of said Nazi Party within the United States, would continue after the fall and early winter of 1940 to deny, falsify, deceive, and misrepresent to the United States, their agencies, departments and bureaus the material facts relating to the existence, kind and extent of their membership and activities in, affiliation with and the existence and activities of said Nazi Party within the United States, to the end that the said denials, concealments, falsifications, misrepresentations, suppressions, and equivocations made in connection with said 1940 Registration would continue thereafter to the detriment and failure of said United States and their agencies, departments and bureaus, to ascertain fully, fairly and accurately, during a National Emergency, information relating to membership, affiliation and activities of these defendants and others in the Nazi Party in the United States, and their furtherance of the political activities, public relations and public policy of the Government and leader of the Third German Reich, all of which information was vital to the internal security of the United States.'
"And then the indictment continues to allege what is called overt acts, and there is an overt act alleged with reference to each defendant now on trial. I think that they are all in the same form, so that when I read one you will understand that that characterizes the overt act alleged on the part of each defendant now on trial.
"`That on or about December 7, 1940, the defendant,' — giving his name — `at the Borough of Brooklyn, County of Kings, City, State and Eastern District of New York and within the jurisdiction of this Court, did sign his name to an Alien Registration Form, issued by the United States Department of Justice pursuant to the provisions of the said Alien Registration Act of 1940.'
"That is the nature of this charge. A conspiracy within the contemplation of law, and if established to justify conviction, may be described in clear language as follows: It is an agreement, namely, a common purpose and a concert of action on the part of two or more persons to accomplish the object of the conspiracy. The word `agreement' does not mean that there is a formal contract which is required to be established, such as a contract characterizing business conduct or the formal proceedings that characterize the transaction of human affairs; but there must be an agreement in the sense that the evidence must indicate by the margin that I shall explain in a moment, a common purpose, a meeting of minds on a common object having in view the accomplishment of that common object by an agreed procedure. Now, the evidence of such an agreement may be found in verbal or written communications and also in actions which are consistent only with an understanding of the common purpose to be attained and the methods to be employed in bringing it about. Each individual said to have taken part in such a conspiracy, as is alleged in this case, is entitled to have the evidence examined separately as to him or to her. This means that your verdict must be reported separately as to each defendant, guilty or not guilty.
"Now, the evidence relied upon to establish such a conspiracy may be first, direct; that is, the evidence of eye-witnesses who saw, heard or participated in the transactions relied upon to establish the alleged conspiracy. That is direct evidence. Or it may be, secondly, circumstantial; that is, evidence of conduct on the part of a given defendant which is consistent only with knowledge of the common purpose and participation in that common purpose, with the intent that it shall be accomplished. If circumstantial evidence does not point inevitably and exclusively to guilt, that is, if it is consistent with innocence, it cannot be relied upon to establish guilt.
"Now, conspiracy in order to constitute an offense against the law, must not only have been agreed to, as has been explained, but at least one step must be taken by each participant sought to be charged to accomplish the object of the conspiracy and to carry it into effect. * * * The defendants are and each of them is presumed to be innocent, and that presumption attaches to him or to her from the opening of the trial until the jury shall return with its verdict. In order to overcome that presumption of innocence, the burden rests upon the Government of proving the guilt of each defendant separately beyond a reasonable doubt. * * * I haven't yet read you this law that the defendants are said to have conspired to violate. I think I will do it so that will be clear in your minds. I am reading from Title 8, the United States Code, Section 452, paragraph A:
"`It shall be the duty of every alien now or hereafter in the United States, who is fourteen years of age or older and has not been registered and fingerprinted under section 451 of this title, and remains in the United States for thirty days or longer, to apply for registration and to be fingerprinted before the expiration of such thirty days.'
"You can disregard that reference to Section 451, which has to do with aliens seeking to enter the United States and who have to procure a visa in that connection. That simply says that no such visa shall be issued to an alien seeking to enter unless the alien has been registered and fingerprinted, in duplicate. Now, that law was enacted on June 28, 1940, and pursuant to that law this registration was conducted and forms were provided for the aliens to answer. * * *
"Now, if there was until the departure of Draeger and Vogel and others, a Nazi Party in the United States, the question which you will then have to decide is: Did Draeger and Vogel and other Party members instigate efforts to conceal its existence; and to that end, did they advise and counsel and direct that the answers to questions 10 and 15 on the 1940 blank be so framed as to effectuate that purpose?
"What have you in the evidence which is calculated to help you to reach a conclusion on that very important question? Well, in the first place, the answers to questions 10 and 15 on the 1940 registration blank on the part of these defendants are before you in the evidence in this case. As you examine them, you will wish to inquire as to whether they disclosed the truth.
"I suppose it is hardly necessary to charge you that the Government was entitled to truthful answers in connection with this registration; and so I ask you or I suggest that you ask yourselves: Do those answers disclose the truth, as you understand the truth to be, according to the evidence in the case?
"Then again, perhaps, you will wish to consider: Are those answers of so uniform a character as to point inevitably to a common origin, or is their uniformity, if it be present, consistent with mere coincidence? Did they just happen that the answers were uniform, if that be the fact?
"You will recall and consider all the testimony as to the slip which was supplied at the office of Draeger and Vogel; I think a copy of that slip is in evidence; and you may wish to compare it with the answers for the purpose of ascertaining whether the answers were of uniform kind.
"It may assist you to reach a conclusion as to whether there was a common purpose by examining the statements in evidence made to the F.B.I. agents, to determine whether one story was told at one time by certain defendants and a different story at another time. If there was a difference in narrative, you may wish to examine into the reasons given for the different versions. Was there anything said by way of explanation for having said one thing at one time and another at another time? In that connection you may wish to reflect upon the question of why there was a suppression of the truth, if there was such suppression, if there was nothing to hide. That is, if there never was a Nazi Party Auslands division in the United States, why should any one have sought to hide its theoretical or alleged presence? This may also assist you in concluding whether there was present in the mind of any defendant knowledge of a common purpose and an effort to carry that common purpose into effect."
The appellants requested a charge, No. 34, which read:
"If the evidence leaves you with a reasonable doubt whether any defendant believed the answers to questions * * * which he or she was advised to make by the German Consul, fairly complied with the instructions contained in Government's Exhibit 235, then you must resolve that doubt in favor of such defendant and find him or her not guilty." The judge said: "No. 34 is denied, since no defendant is charged with the substantive crime. The question is whether there was a conspiracy." No specific exception was taken by defendants.
The official application form.
The judge also denied, with a specific exception, requested Charge No. 17, which read: "You are charged that the fact that these defendants, or any one of them, sought, obtained and followed the advice of the German Consul is in and of itself insufficient to establish the engagement of such defendant in a plan or conspiracy with the said Consul."
The jury having rendered a verdict against appellants, judgment and sentences of the appellants followed.
David S. Kumble, of New York City, for appellants.
T. Vincent Quinn, of Brooklyn, N.Y. (Robert M. Hitchcock and Leo A. Roth, both of Washington, D.C., of counsel), for appellee.
Before L. HAND, CHASE, and FRANK, Circuit Judges.
1. There was ample evidence to justify the jury in finding that each of the defendants made false statements in his application in answer to items Nos. 10 and 15. No. 10 required the applicant to tell what his "activities" had been or in what "activities" he intended to be engaged; in this connection he was called on to state his "membership or activities in clubs, organizations or societies." No. 15 required him to state what "organizations," engaged in whole or part in propaganda in the United States, he had "been affiliated with or active in." We think it clear that "activities", in both 10 and 15, meant the applicant's personal activities. In addition, in No. 10, "activities" explicitly included "membership"; in No. 15, "activities" explicitly included being "a member of" or a "worker for" such an organization. Each question thus required disclosure of membership in such an organization.
Of the defendants who were full members of the Party, some answered that they were aiding "no activities in the United States." The jury could reasonably find that such answers were untrue. Other full members said they were "non-resident" members. We think that the jury could reasonably have found such answers also false. For the phrase "non-resident" members might mean that such a person, although a Nazi, was a "non-resident" of Germany residing in this country and not a member of a party active here; and No. 15 was designed to call for disclosure of activities in the United States. The answers, to say the least, were misleading, for they created the impression that the defendant's connection with the Party was such that he had no "activity" here.
Other defendants were "anwaerters" who, in their answers, revealed nothing whatever as to their connection with the Party. The jury could have found their answers false. No. 10 called for an answer as to "activities"; No. 15 called for "affiliation." The jury could reasonably have found that these defendants were "affiliated" with and "active" in the Party.
2. But the making of such false statements was not enough to justify a verdict of guilt. Pursuant to 18 U.S.C.A. § 88, each of the defendants was charged with and convicted of conspiring to defraud the United States by the filing of statements in violation of the Alien Registration Act, 8 U.S.C.A. § 452 et seq. Section 457(c) of that Act imposes a penalty on an alien who "files an application for registration containing statements known by him to be false * * *." As the substantive crime thus involved both (a) falsity and (b) knowledge of the falsity, the defendants were obviously entitled to have the judge charge, in the most unmistakable language, that no defendant here could be found guilty unless he was a party to an agreement, plan, or combination, to file an application containing statements known to him to be false. The existence of a common undertaking, in which a defendant joined, merely to file statements which were false, but not known to him to be false, could not support his conviction.
Emphasis added.
Because of the defect in the instructions, we need not consider whether the evidence was sufficient to prove an alternative basis which would support conviction of any defendant, i.e., that he had knowledge of Draeger's intention to have other applicants file applications containing false statements known by such defendant to be false.
Yet nowhere did the judge plainly so advise the jurors. He carefully read to the jurors 8 U.S.C.A. § 452(a) but he neither read nor mentioned to them § 457(c) which, as above noted, defined the substantive crime as involving the filing by an alien of statements "known by him to be false." It is clear, we think, that the judge did not consider it necessary that each defendant should have "had in contemplation all the elements of the crime" he was "charged with conspiracy to commit." Why he did not do so is, we think, made manifest by the following: Defendants requested a charge No. 34 reading, "If the evidence leaves you with a reasonable doubt whether any defendant believed the answers to questions * * * which he or she was advised to make by the German Consul, fairly complied with the instructions contained in Government's Exhibit 235, you must resolve that doubt in favor of such defendant and find him or her not guilty." In response to this request, the trial judge said: "No 34 is denied since no defendant is charged with the substantive crime. The question is whether there was a conspiracy." This was the equivalent of saying that, where a substantive crime involves knowledge, a conspiracy to commit that crime need not. His comment, we think, shows that the trial judge entertained this notion: Knowledge by a defendant of the falsity of his statements was not necessary if that defendant confederated with another person, Draeger, who, unknown to that defendant, intended to, and did, bring about the filing by that defendant of an application containing statements known by Draeger to be false.
See United States v. Mack, 2 Cir., 112 F.2d 290, 292. As to whether, at least in some circumstances, more is required, cf. Keegan v. United States, June 11, 1945, 325 U.S. 478, 65 S.Ct. 1203.
Such a notion is not uncommon. But we consider it erroneous. It might often result in the conviction of men not guilty of wrongdoing who innocently associated themselves with others intent on wrongdoing. The conspiracy doctrine is, at best, a dangerous instrumentality the use of which is fraught with dangers to the innocent. If extended in accordance with the notion we have described, it would indeed be a menace to honest men. Cf. United States v. Peoni, 2 Cir., 100 F.2d 401, 403. As Judge Thomas said in Fulbright v. United States, 8 Cir., 91 F.2d 210, 211, where "knowledge * * * is made an essential element of the substantive crime * * * it must adhere in a charge of conspiracy to commit that crime." Escape from that doctrine cannot be had through the suggestion that the conspiracy here was "to defraud the United States," for here the conspiracy to defraud, if it existed, consisted of a conspiracy to have each defendant file statements known by him to be false.
For one thing, in practical effect it often permits the reception of what, in a non-conspiracy case, would be inadmissible hearsay evidence as to some of the defendants, and not infrequently evidence of that kind to an extent which would be considered improper in a non-conspiracy case even by most of those who, in general, favor the abolition of the hearsay rule.
Here, then, it was not enough that a defendant gave an answer which in fact was false, or one which was known to Draeger to be false; it was necessary for a conviction of any defendant to prove that he gave an answer which that defendant knew to be untruthful. On the evidence, the jury, correctly instructed, could properly have concluded that each defendant had the requisite knowledge. But the judge's instructions were such that we fear the jurors may not have comprehended that they were called upon to decide that issue of fact. Had the instructions clearly apprised them that they must pass upon that issue, we think that, having in mind the authority-loving character of many modern Germans, and particularly of Nazis, the jurors could reasonably have believed that these defendants accepted as truthful the answers suggested to them by Draeger, a German official. We may dislike the Teutonic veneration of officialdom, but it is not criminal.
The comment in footnote 7 applies here.
On the evidence here, the judge, had he charged the necessity of knowledge of the falsity, might have added, in effect, that this requirement would be satisfied if the jury found that Draeger knew the statements were false, and, as to any defendant, that such defendant had impliedly agreed to accept Draeger's advice as a command which that defendant must obey without regard to whether or not the statements were false.
We are not to be taken as saying that it was necessary for the judge to give an instruction worded precisely as was the requested Charge No. 34, to which we refer primarily because his explanation of his refusal to give it illuminates his failure to instruct clearly as to the necessity of knowledge. We think that the failure so to instruct was so important that we would reverse even had no such request been made and no exception been taken to the charge.
Indeed, there was no adequate specific exception to the refusal to give this requested charge.
Although we do not rest our decision thereon, we note, in passing, that the judge denied requested Charge No. 17, and the defendants specifically excepted to that ruling.
It is suggested that the portion of the indictment read by the judge to the jury charged each defendant with the requisite knowledge. Whether that be true is not entirely clear. But assuming arguendo (1) that knowledge by each of the appellants of the falsity of his statements was there charged and (2) that the reading of that part of the indictment to the jury would have been sufficient had the judge instructed the jurors that they should not render a verdict against a defendant unless they believed beyond a reasonable doubt that that defendant behaved as thus charged in the indictment, the fact is that here the judge gave no such instruction.
Even if it did not charge knowledge, the indictment was not defective on that account.
It is suggested that the necessity of knowledge was adequately stressed when the judge said (1) that a conspiracy involves "an understanding of a common purpose to be attained and the methods to be employed in bringing it about," and that each individual defendant was "entitled to have the evidence separately examined as to him or her," (2) that circumstantial evidence would be sufficient if "consistent only with knowledge of the common purpose and participation in that common purpose," and (3) that the jury should consider "whether there was present in the mind of any defendant knowledge of a common purpose and an effort to carry out that purpose." But these remarks were highly ambiguous. Without a sharper definition, they could well have led the jury to think the judge was referring merely to knowledge of a common purpose to file statements which in fact were false even if not known to a particular defendant to be false; and that such was the intention of the judge we think appears from his comment (discussed above) when he denied requested Charge No. 34. The government also makes much of the fact that defendants withdrew requested Charges No. 13, No. 14 and No. 15. But the withdrawal of those requests was not an acquiescence in the error we have been discussing, for these requests dealt with knowledge of the existence of a conspiracy, not with knowledge of the falsity of the statements; they referred to knowledge of a combination to file statements which in fact were false but not to a combination to file statements known to individual defendants to be false.
They read as follows:
"13. You must acquit any defendant as to whom the Government fails to prove to your satisfaction and beyond the reasonable doubt that such defendant knew of the existence of the plan and the purpose of the conspiracy alleged to have been conceived by the German Ambassador, German Consul, and their aids.
"14. Even though you find that there was a conspiracy in which defendants acted, unless you find that they knowingly and wilfully participated therein, you must acquit them.
"15. You are charged that before you can decide what was the intent of any of the defendants you must first decide what knowledge he had, because if he had no knowledge of the existence of a conspiracy, if one existed, he could not have any intent to participate in it."
The following colloquy occurred with respect to No. 15:
"The Court: I think 15 is covered. I thing I said it must be the intentional and intelligent act of each defendant. I think I said that.
"Mr. Kumble: Yes.
"The Court: Is it withdrawn?
"Mr. Kumble: Yes, your Honor."
The defect in the instructions was not cured when the judge gave the usual general charges as to presumption of innocence, burden of proof and reasonable doubt; in the absence of a specific charge as to knowledge of the falsity, such general charges were insufficient. Because there is altogether too much danger that the jury may not have understood that such knowledge was an essential element of guilt, we conclude that the verdict cannot stand.
Reversed and remanded.