254 U. S. 325, 65 L. ed. 287, 41 Sup. Ct. Rep. 125.

2. To establish the guilt of the defendants, the state was required to

Conspiracyhindering prosecution of war.

prove that they had conspired to teach or advocate that men should not enlist in the military or naval forces of the United States, or that citizens of Minnesota should not aid the United States in carrying on the war with Germany; and that some act had been done by one or both to effect the object of the conspiracy. Gen. Stat. 1913, §§ 8595, 8596.

The combination of two or more minds in an unlawful purpose is the foundation of the offense, but an overt act in furtherance of the common purpose is necessary to complete it. The statement to the contrary in State v. Pulle, 12 Minn. 164, Gil. 99, is no longer the law, in view of the provisions of the statute. All who are parties to the combination incur guilt when any one of them does an act to further the purpose of the unlawful confederation. State v. Thaden, 43 Minn. 253, 45 N. W. 447; State v. Palmer, 79 Minn. 428, 82 N. W. 685; State v. Dunn, 140 Minn. 308, 168 N. W. 2; State v. Smith, 144 Minn. 348, 175 N. W. 689; Hyde v. United States, 225 U. S. 347, 56 L. ed. 1114, 32 Sup. Ct. Rep. 793, Ann. Cas. 1914A, 614.

The combination need not be established by direct evidence. It may be inferred from circumstances. No formal agreement to do the acts charged need be shown. Concurrence of sentiment and co-operative conduct, and not formality of formality of speech, are the essential ingredients of conspiracy. Redding v. Wright, 49 Minn. 322, 51 N. W. 1056; Eacock v. State, 169 Ind. 488, 82 N. W. 1039; State v. Caine, 134 Iowa, 147, 111 N. W. 443; Marrash v. United States, 93 C. C. A. 511, 168 Fed. 225; Underhill, Crim. Ev. 491.

To sustain the charge, the state introduced both direct and circumstantial evidence of the alleged conspiracy, and made proof of defendants' acts alleged to have been

done in furtherance of it. Those done in Jackson county were the acts of Gilbert alone, for it does not appear that Townley was ever in that county prior to the return of the indictment, but nevertheless the venue might properly be laid in Jackson county. Hyde v. United States, supra.

The direct evidence of conspiracy consisted of the testimony of one F. A. Teigen, which, in substance, was as follows: He made Townley's acquaintance at Fargo, in the winter of 1916, and Gilbert's at St. Paul, somewhat later. They employed him as an organizer, under a contract running for one year, to procure members of the Nonpartisan League, and to collect membership fees. Before he was employed, Townley told him he had conceived of and built the League himself, and had the final decision as to its policy. Defendants were together at League headquarters in St. Paul, where both had offices. Townley was president and Gilbert had charge of the organization work of the League. Teigen took orders from both. He discussed with Townley a speech which one Van Lear made at a meeting in his territory, and asked whether he should participate in another meeting at which Van Lear was to speak. Townley replied that the Van Lear speech was a "crackerjack," and in the same connection said: "We are against this God damned war, but we can't afford to advertise it." He advised him not to take part in the proposed meeting. Teigen had prepared a speech which he intended to deliver, and discussed it with defendants. Gilbert_thought that it was all right, but Townley said that it was too direct; that it should be camouflaged a little, and added: "Don't write or say or do anything that they can get. you for; that is, any open opposition to the war. It is far better to let your position be known and understood by indirect methods."

Late in the summer of 1917, letters of instruction were mailed to League organizers, expressing loyal

sentiments. Townley told Teigen they were sent out to show that the League was patriotic, but that the real instructions would come by word of mouth from traveling agents. Gilbert expressed opposition to all wars, on principle. on principle. Townley's opposition was based on policy rather than principle. Both told Teigen that the cost of the war should not be met by the sale of bonds-that it was absolutely wrong, a mistaken policy on the part of the government. In the fall of 1917, Gilbert informed Teigen that the Public Safety Commission had asked that his further services be dispensed with. Townley said to him: "Somebody has got to be sacrified to appease them, and you are the man that they are very bitter against, so we have got to discharge you. . And I am going

out. I have got to go out-I am compelled to and make patriotic speeches, and I have ordered all of the other men to do the same thing, because if we don't they are going to get us."

Gilbert admitted that he had talked with Teigen about the war, expressing his personal opinion, but denied that he told him what to teach. He admitted that Teigen had shown him his proposed speech, but denied that he had approved of or discussed it with Townley. He also admitted that he had signed Teigen's contract in behalf of the League.

Townley did not testify.

The sum and substance of Teigen's testimony was that the defendants were in accord in their purpose to discourage the prosecution of the war; that they planned to oppose it, and to use their organization to accomplish that end. Defendants characterize his testimony as a tissue of falsehoods. Granting that he is a man of doubtful veracity, and the defendants' enemy, it nevertheless appears that defendants did and said in public substantially what he asserts they told him in private they were going to do and say. Their conduct and utterances square with 17 A.L.R.-17.

his testimony, and lend it credit which otherwise it might not be entitled to receive. The jury, who heard him testify and saw him undergo a searching cross-examination, were evidently convinced that he was not unworthy of belief.

The relations of the defendants to each other and to the organization they were promoting, the printed matter they distributed, and their public speeches, comprise the circumstantial evidence of the existence of the alleged conspiracy. This was the situation: When the United States declared war, defendants were, and for some time had been, engaged in enlarging the membership and field of activity of the Nonpartisan League. It was a political organization, seeking to gain control of the government of a number of states, in order to put through an economic program advocated by its leaders. Defendants were conspicuous and influential members of a small group of men who controlled the organization. The entry of the United States in the war interfered with their program and naturally diverted public attention to greater and more momentous issues than the alleged economic grievances of the class of citizens which the organizers of the League proposed to redress. It was inevitable that during the continuance of the war a consideration of these grievances would be postponed. The war was unpopular in many localities. would be easier to sell memberships in such localities if the impression prevailed that the officers of the League proposed to use the influence of a powerful organization to keep young men from being sent overseas. Soon after war was declared a pamphlet was printed and placed in the hands of the League's field workers. It was composed of three distinct parts. The first sets forth the League's origin and method of operation; the second contains resolutions on the war adopted by the League; and the third states the principles of the League. It was prepared at Gilbert's suggestion, to

It

be used in getting members, and he admitted that he was absolutely in accord with the ideas expressed in it. There can be no reasonable doubt that Townley, as president of the League, was cognizant of the pamphlet and its circulation, and the inference is that he approved of it. The war resolutions contained in it are set out in State v. Townley, 140 Minn. 413, 168 N. W. 591, where it was held that they did not violate chapter 463, Gen. Laws 1917. They were, however, a criticism of the policy of conscripting men, and not wealth, and of the alleged unwarranted interference of military authority with the rights of individuals. We are of the opinion that the pamphlet was properly received in evidence. Pierce v. United States, 252 U. S. 239, 64 L. ed. 542, 40 Sup. Ct. Rep. 205.

Defendants made numerous speeches in different parts of the state during the summer and fall of 1917 and the winter of 1918. Occasionally both were present at the same meeting. Both participated Both participated in and spoke at one held in St. Paul in September, 1917. Some of their speeches are contained in the record. Among them is Gilbert's Kenyon speech, referred to the opinion in State v. Gilbert, 141 Minn. 263, 169 N. W. 790, affirming his conviction for a violation of chapter 463. In Gilbert v. Minnesota (U. S. Adv. Ops. 1920-21, p. 146) 254 U. S. 325, 65 L. ed. 287, 41 Sup. Ct. Rep. 125, Mr. Justice McKenna, speaking for the Supreme Court of the United States, in sustaining the decision of this court, said: "Gilbert's speech had the purpose they [the sections of the statutes] denounce. The nation was at war with Germany, armies were recruiting, and the speech was the discouragement of that.

Every word that he uttered in denunciation of the war was false, was deliberate misrepresentation of the motives which impelled it, and the objects for which it was prosecuted. He could have had no purpose other than that of which he was charged."

On January 18, 1918, a letter was

addressed and sent to A. E. Bowen, an officer of the League. It was signed by the county director of public safety for Jackson county and by the sheriff. It requested Bowen to keep League speakers out of the county, stating that any attempt to hold further League meetings in the county would be likely to result in disturbances, and that every measure at the disposal of the writers would be used to prevent such meetings. It was written in response to a letter from Bowen, announcing a League meeting in Jackson county on January 23d. Taking the letter with him, on that day Gilbert went to Lakefield, where the meeting was to be held. He met a number of county officials, including the sheriff. Exhibiting the letter to them, he said he was the manager of the League, and deemed the matter referred to in the letter so important that he had come himself rather than send a subordinate. He was informed that a League organizer named Freitag had been going about the county holding meetings and influencing people in such a way that it was hard to get them to buy Liberty bonds. He replied that he was not responsible for what organizers did; that he was going to hold a meeting; that the authorities would have to arrest him if they intended to stop him; that he had been sent down to test the law; that the case would be carried to the highest court in the land; and that they had plenty of money to do it. He then proceeded to make his speech, but before he concluded he was placed under arrest. The speech was of the same general nature his Kenyon speech. The sheriff testified that in The boys substance Gilbert said: of the farm should be left on the farms; that they are better off on the farms than they are in the trenches 5,000 miles away. Who is going to feed them when they are 5,000 miles away? You farmers have worked harder than ever before. You have had to subscribe to the Liberty Loan, Y. M. C. A., and to the Red Cross; and on top of all

as

(- Minn.

that, now they take your boys away. When the government conscripted your boys, they didn't conscript wealth. If they had, we wouldn't have to have wheatless days and meatless days and heatless days. .. Men had never been drafted to be sent across the sea to fight. The county officials were a lot of flag wavers, and that they wrapped themselves up in the Stars and Stripes and spelled their patriotism with big letters-P-A-Y.

The man Freitag, referred to in the Bowen letter, was a League organizer working in Jackson county. In soliciting members, he said in substance that the war was a moneyed man's war; that if it wasn't for money we wouldn't be at war; that a meeting had been called to send a petition to the government to keep the boys from being sent across to fight. At a public meeting at Sioux Valley, he said England and France were bankrupt, and this country soon would be if it kept on spending such large sums of money, and advised farmers not to invest in Liberty bonds, but in elevators, flour mills, and things essential to their interests. This was just before the probate judge of the county made a speech urging the purchase of Liberty bonds.

Townley's speeches bear a marked resemblance to Gilbert's, both in the ideas expressed and the language used, though he was not so outspoken. His St. Paul speech in September, 1917, is referred to by his counsel as typical of his speeches in general. In the course of that speech, referring to the steel, packing, and milling business, he said: "Take as much profit out of their business as has been taken out of the business of raising wheat in the Northwest. Now, as soon as you do that, nobody will want to continue the war any longer unless to secure liberty and democracy. Fix a price on steel on the same basis and by the same power as you have fixed the price on the farmer's wheat and this patriotic corporation won't want to

182 N. W. 773.)

continue the war except for liberty and democracy. If your government should be able to

more

fix the price of steel and flour so that those gentlemen would make no than the farmer is making out of wheat, I am afraid that the Minneapolis Journal would be one of the worst slackers in the whole United States."

In another portion of this speech, he said: "We got the government. control too largely into the hands of the profiteers. They are to-day influencing this government in too large a measure. An influence so large that they can say we are going to have 40,000,000,000 of dollars to spend here to prosecute this war. Now, how much have we got to pay the farmers for wheat to keep bread in the boys' stomachs. All that we don't have to pay for wheat to keep bread in the boys' stomachs we can use to pay profits to ourselves."

In another portion, he said: "The kept press, the newspapers owned by those who make four or five billion dollars, and the mouths of some gentlemen have been very full of professions of their patriotism, but too many of those professions of patriotism come from men whose pockets bulge with the gold they stole from us. They are not patriots, because they possess billions and billions of war profits wrung from the agony and sweat and toil of men and women. possession of these billions of dollars of war profit in the pockets of these profiteers, their arms red to the elbows in the blood of this nation, is proof that they are not patriots. Then, in a time of the world crisis, in a time of the nation's need, if they are not patriots, what in hell are they? Who has a German helmet placed upon their heads and you see the Kaiser himself."

The

In a speech at New Ulm in June, 1917, he said: "Then they ask us to purchase Liberty bonds. How about that $4,000,000,000 in excess profits the people of this country have paid? This is double

So we propose that, as there is a God in heaven, these men are not coming back maimed and in poverty to pay off this horrible war debt; we will not shoulder on their backs this great burden. We will take the surplus wealth of the country now and use it for the war, and when the war is over we will give back what is left, and clean the slate.

We must destroy American autocracy in this country before we attempt to relieve the people of Europe of the oppression of German autocracy. . . . I am for liberty and democracy, but not for a war to submit a people to robbery by a financial autocracy. . It is time

for the American people to wake up and kick out this autocracy of wealth which has fastened its has fastened its clutches on the throat of liberty in this country. After this operation is completed it is time to talk of freeing Europe of German autocracy."

He further said: "The government says you have to go across the seas to fight, and of course you will have to go, and many of you will sacrifice your lives. Some of you will come back maimed and blind, and your life will be destroyed; but why don't they draft the Big Biz? I say, before we let you go over there, they should draft Big Biz into it and then there would be no fight."

In a speech at Glencoe, in June,

1917, he said: "I am afraid that if the nation should come to the big corporations and want those who are making millions of wealth to give over their surplus, I am afraid it might dampen their ardor for war a little bit. I am a little bit afraid that there might not be much of a There is no reason why we should pay after the war is over some billions of dollars to the war profit when we are sending our boys over to die. Let's see whether this is right, to take our surplus wealth to finance this war. The rich man is not going to go, he is making the rules of the game.

war.

We pro

pose that this nation shall take so much of the surplus of this wealth of our nation and use it now, and when the war is over give back as much of the wealth as is left, and no more."

In a speech at Cambridge in February, 1918, he said that the war "was a rich man's war, and for the benefit of the rich. If the rich had to pay their proportionate share with the farmer or poorer class, the war wouldn't last very long.

It wasn't right that we should send our boys over there to fight other people's battles."

These statements were intermingled with others pointing to the duty of every American citizen to support his government. No exception can be taken to many of the things he said, but his speeches are to be read as a whole. So read, the good in them is more than nullified by the bad. by the bad. It is urged that they contained nothing calculated to discourage enlistments. Doubtless their only effect on right-thinking men was to excite their indignation, but with men who did not know why the United States had engaged in the war, and who were credulous enough to believe these statements, and especially among those who did not favor our entry in the war, they could have but one effect,-the discouragement of enlistments and of subscriptions to government bonds.

When Teigen's testimony, if true, and the admitted facts and utter