"That when the United States is at war, whoever, with intent to injure, interfere with, or obstruct the United States or any associate nation in preparing for or carrying, on the war or whoever, with reason to believe that his act may injure, interfere with, or obstruct the United States or any associate nation in preparing for or carrying on the war, shall willfully make or cause to be made in a defective manner, or attempt to make or cause to be made in a defective manner, any war material, as herein defined, or any tool, implement, machine, utensil, or receptacle used or employed in making, producing, manufacturing, or repairing any such war material, as herein defined, shall, upon conviction thereof be fined not more than $10,000 or imprisoned not more than thirty years or both."

The government has offered substantial evidence, which the defendants have vigorously combated, to prove the charge laid in the indictment. Fox, if he ever assented to the pouring of vinegar in the bearings of Ingraham's lathe or to loosening its tail stock or screws (all of which is for the jury's determination), recanted, and, being suspected by his employer and kept under surveillance, disclosed, according to his evidence, when called to the office of his employer, the entire scheme which the government claims was concocted on the evening of June 11th. The defendants' position is that, to convict of an attempt to commit a crime, it is necessary to show that an overt act was done with the specific intent to commit that particular crime, and that merely to advise, solicit, or attempt to influence another to commit a crime is not an overt act, but that some additional step constituting such an overt act is necessary to constitute an offense. They therefore claim that the indictment is insufficient in law, and that, if the evidence offered by the government be accepted as true, no offense was committed, for the reason that the defendants did nothing more than to advise, solicit, and attempt to influence Fox to pour vinegar into the bearings of the lathe and to loosen its tail stock and

screws.

The gravity of the situation produced by the present war is such that Congress in its wisdom was impelled to enact the wise, but somewhat drastic, law on which the indictment is based. It denounces as a felon (see section 335, Penal Code (Act March 4, 1909, c. 321, 35 Stat. 1152 [Comp. St. 1916, § 10509]) not only the person who, with reason to believe that his act may injure, interfere with, or obstruct the United States in preparing for or carrying on the war, will. fully makes or causes to be made in a defective manner any war material, such as the Ralston Steel Car Company was making, but also the person who under like conditions attempts to make or who attempts to cause to be made in a defective manner any such material. The language employed is comprehensive and unrestricted. It does not define the nature of the attempt which it condemns, but expressly makes the attempt itself a separate substantive crime, and covers any attempt to cause to be made in a defective manner war material coming within its terms. Another illustration of a law which makes it a penal offense to attempt a prohibitied act is found in section 2 of the Sherman Anti-Trust Act (Act July 2, 1890, c. 647, 26 Stat. 209 [Comp. St. 1916, § 8821]). In Waters-Pierce Oil Co. v. Texas, 212 U. S. 86, 107, 29 Sup. Ct. 220, 53 L. Ed. 417, it was said not to be uncommon in criminal law to punish, not only a completed act, but

also acts which attempt to bring about the prohibited result. The court had under consideration a Texas statute, but on page 110 it applied the same rule to the Sherman Act.

Whether the defendants attempted to commit a felony (assuming the government's evidence to be true) depends upon the answer to the question: Does the willful advising, soliciting, and attempting to influence another to commit the felony named in the statute constitute an attempt? In Bishop's New Crim. Law (Ed. 1892) vol. 1, §§ 728, 729, it is said:

"An attempt is an intent to do a particular criminal thing, with an act toward it falling short of the thing intended. Hence, the two elements of an evil intent and a simultaneous resulting act constitute, and yet only in combination, an indictable offense, the same as in any other crime."

Other definitions of attempt and of the elements of an attempt to commit a crime are found in 3 Am. & Eng. Ency. Law, 250, 251, 254, and Wooldridge v. U. S., 237 Fed. 775, 778, 779, 150 C. C. A. 529 (C. C. A. 9). Whether a mere solicitation to commit a crime-a mere advising and effort to influence its commission-is an act toward carrying the intent into execution, and is an endeavor to attempt to commit a crime, has been inferentially, but not expressly, decided by the Supreme Court. In United States v. Quincy, 6 Pet. 445, 465 (8 L. Ed. 458) it was ruled that:

"To attempt to do an act does not, either in law or in common parlance, imply a completion of the act, or any definite progress toward it; any effort or endeavor to effect it, will satisfy the terms of the law." (Italics mine.)

The language of the court is as broad as that of the Sabotage Act. By the great weight of authority it is an indictable offense at common law for one to counsel and solicit another to commit a felony or other aggravated offense, although the solicitation is of no effect and the crime counseled is not in fact committed. A citation of the many pertinent cases is impracticable, but reference is made to Commonwealth v. Flagg, 135 Mass. 545, 549; 12 Cyc. 182; Rex v. Higgins, 2 East, 5; Reg. v. Ransford, 13 Cox. Crim. Law Cas. 9, 15; United States v. Lyles, Fed. Cas. No. 15,646; United States v. Worrall, 2 Dall. 384, Fed. Cas. No. 16,766, in connection with which see State v. Butler, 8 Wash. 194, 35 Pac. 1093, 25 L. R. A. at page 439, 40 Am. St. Rep. 900; United States v. Craig (C. C.) 28 Fed. 795, 800; Commonwealth v. Tolman, 149 Mass. 229, 21 N. E. 377, 3 L. R. A. 747, 14 Am. St. Rep. 414 and notes; Commonwealth v. Harrington, 3 Pick. (Mass.) 26; Ohio v. Davis, Tappan (Ohio St.) 171; State v. Keyes, 8 Vt. 57, 30 Am. Dec. 450; State v. Avery, 7 Conn. 266, 18 Am. Dec. 105; Bishop's New Crim. Law, vol. 1, § 767 et seq.; Wharton, Crim. Law (11th Ed.) §§ 212, 218, and note to 213. Clark & Marshall's Law of Crimes, § 131, states that:

"The decided weight of authority, both in England and the United States, is in favor of the doctrine that it is a misdemeanor merely to solicit another to commit a crime, if the crime be a felony, though nothing further is done toward carrying out the unlawful purpose. The solicitation, without more, is regarded as a sufficient act to take the case out of the sphere of mere intent."

253 F.-6

It is true there are no common-law offenses against the United States (United States v. Eaton, 144 U. S. 677, 687, 12 Sup. Ct. 764, 36 L. Ed. 591); but state statutes and decisions may be persuasive, although criminal cases in the national courts are controlled by federal statutes (Byrne, Fed. Crim. Proc. § 1). People v. Bush, 4 Hill (N. Y.) 133, is illuminating. A New York statute made arson a felony. Another statute the one under which the indictment was brought-provided that every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act toward the commission of such offense, but shall fail in the perpetration thereof, or shall be prevented or intercepted in executing the same, upon conviction shall be punished. The defendant was indicted for soliciting and inciting another to burn a barn. On the hearing the evidence showed that subsequent to the solicitation the defendant supplied the person solicited with a match with which to start the fire, but that such person never intended to commit the crime. The counts in the indictment charged the solicitation, but not the furnishing of the match, and were held sufficient. The case was decided without reference to the fact that the match was furnished. It was ruled that an attempt in any form to commit an offense was within the statute, a doctrine which coincides with that announced in United States v. Quincy, supra; that the defendant endeavored to make himself an accessory before the fact, as did the defendants in the instant case, if the government's evidence be true; that solicitation is a species of attempt; and that a mere solicitation to commit a felony is an offense, whether the felony is actually committed or not.

I am not unmindful that there are authorities which hold that a mere advising, solicitation, or incitement to commit a crime is not a step. taken or an act done toward its commission. For the purposes of this case it is not necessary to analyze or distinguish them. The New York statute, which was aimed at attempts, and under which the Bush Case was decided, was general in its provisions. We have in the instant case the specific declaration of the Sabotage Act that the attempt therein named, being such as is recited in the indictment, constitutes a crime. To attempt to cause a thing to be done is an attempt to effect or bring about the doing of that thing. Advising and attempting to influence the doing of a thing is a means, and often a most potent means, of effecting or accomplishing the desired result. Mere words. may constitute the offense of an attempt, when they solicit the commission of a crime. Wharton, Crim. Law (11th Ed.) note to section 213, and cases cited, and 3 Am. & Eng. Ency. Law, 264. There is substantial agreement among the authorities that words that are seditious, or provocative of breaches of the public peace, are subject to penal judicial action (Wharton, Crim. Law [11th Ed.] § 213); that solicitations which in any way attack the body politic, by way of treason, scandal, or nuisance, are indictable as independent offenses, and, if the solicitation involves the employment of illegal means to effect the illegal end, it may become substantively indictable (Wharton, § 213; Cox v. People, 82 Ill. 191); that all such acts or attempts as tend to the prejudice of the community are indictable (Rex v. Higgins, 2 East, 5, 21);

and that it is criminal to counsel, advise, or entice another to commit an offense of a high and aggravated character, whose commission will tend to breaches of the peace or other great disorder and violence (Commonwealth v. Willard, 22 Pick. [Mass.] 476, 12 Cyc. 182, note). In the highly instructive and much cited case of Rex v. Higgins it was held that an attempt to incite another to steal is prejudicial to the community. Lawrence, J., there said:

“The whole argument for the defendant turns upon a fallacy in assuming that no act is charged to have been done by him; for a solicitation is an act. The offense does not rest in mere intention; for in soliciting Dixon to commit the felony the defendant did an act toward carrying his intention into execution. It is an endeavor or attempt to commit a crime."

The indictment charges an aggravated offense much more prejudicial to the community than an incitement to steal-an incitement or solicitation to commit an offense which, if committed, would inevitably cripple the nation in the prosecution of the present war, prolong its duration, increase its cost, and multiply the number of killed and wounded Americans. The offense charged is such as tends to aid our country's enemies, and is an attack on our body politic; i. e., the whole body of people living under our organized political government, and, law-abiding as our citizenship is, is provocative of disorder and breaches of the peace.

The indictment is sufficient, and the evidence such as requires the submission of the case to the jury. The motions to direct a verdict are overruled, and an exception may be noted by each of the defendants.

GRANT LUMBER CO. v. NORTH RIVER INS. CO. OF NEW YORK.

(District Court, D. Idaho, N. D. July 11, 1918.)

1. INSURANCE 230-FIRE INSURANCE-NEW YORK STANDARD POLICY-CANCELLATION-RETURN OF UNEARNED PREMIUM.

The provision of the New York standard fire insurance policy relating to its cancellation by the insurer upon five day's notice requires that the insurer return or tender the unearned premium in order to effect a cancellation.

2. INSURANCE 146(3)—POLICY-CONSTRUCTION FAVORABLE TO INSURED. Policies of fire insurance, if ambiguous or uncertain in terms, will be construed favorably to the insured.

3. COURTS 366(15)-FEDERAL Courts-CONSTRUCTION OF STATE STATUTE. Where form of fire policy is prescribed by state statute, meaning of policy calls for construction of statute, so that decision of highest court of state will control.

4. INSURANCE 229(2)—FIRE INSURANCE-CANCELLATION OF POLICY-NOTICE. Under a standard New York fire insurance policy authorizing its cancellation upon five days' notice, no particular form of notice is required; but insured must have actual knowledge of insurer's intention to cancel, or such intention must be so expressed as to give notice to ordinary man in exercise of ordinary care.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

5. INSURANCE 229(2)—FIRE INSURANCE-CANCELLATION OF POLICY-NOTICE. Under a fire insurance policy in a New York standard form entitling the insurer to cancel it on five days' notice, the insurer's draft indorsed by the insured, and its "receipt" signed by the insured, though both stating that the policy was thereby canceled, were not equivalent to a notice of cancellation.

6. CONTRACTS 93(2)—Knowledge of Contents-PRESUMPTION-SIGNATURE. The general rule is that one signing a written instrument will not be heard to say that he did not read it, but will be conclusively presumed to have had knowledge of its contents.

7. CONTRACTS 94(4)-FALSE REPRESENTATIONS-SIGNATURE TO WRITTEN IN

STRUMENT-EFFECT.

One signing a written instrument without reading it, upon a false representation by the other party as to its contents or scope, is not bound thereby.

8. INSURANCE 229(2)—FIRE INSURANCE-NOTICE OF CANCELLATION-DRAFT AND RECEIPT.

The manager of a company insured under a fire policy authorizing its cancellation on five days' notice, by accepting and indorsing the insurer's draft in settlement of a loss and by signing its receipt without reading them, was bound by their contents only in so far as they were in the nature of a draft or a receipt, and not by a stipulation as to extraneous matter, such as express statement therein that policy was thereby canceled, and such express statement was therefore insufficient as notice of cancellation.

At Law. Action by the Grant Lumber Company, a corporation, against the North River Insurance Company of New York, a corporation. Judgment for plaintiff.

C. H. Potts, of Coeur d'Alene, Idaho, for plaintiff.

J. F. Ailshie, of Coeur d'Alene, Idaho, and E. Eugene Davis, of Spokane, Wash., for defendant.

DIETRICH, District Judge. On April 1, 1917, through the agency of the Rossi Insurance & Investment Company of Wallace, Idaho, the defendant issued its fire insurance policy for $8,000, covering the plaintiff's lumber manufacturing plant at Harrison, Idaho. A few days later, on April 27th, there was a loss by fire, which, after adjustment, was settled by the payment of $3,572.13, on or soon after May 31st. On July 27th the insured property was entirely destroyed by fire whereupon adjusters, representing the defendant as well as other insurance companies, adjusted the loss; but defendant refused to make settlement, upon the ground that its policy had been canceled in connection with the settlement of the first loss; hence this suit. The amount of the loss being admitted, the controlling, and indeed the only, question is whether or not the policy in suit was in force at the time of the second fire, or had been canceled. Trial by jury has been waived.

In support of its claim of cancellation the defendant relies upon a draft accepted by plaintiff in settlement of the first loss, and a receipt signed by it at the same time. The contention is that the instruments constituted notice, under a clause of the policy (a New York standard form) authorizing cancellation upon five days' no

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