Evening star., 1944-08-15

Suo9e OenIeS motiOn
To Suppress Evidence
At Sedition Trial
BY CARTER BROOKE JONES.
Chief Justice Edward c. Eicher,
holding that the United States ac-
tually was at war with Germany
from the moment Of the Japanese
attack on Pearl Harbor, four days
before Congress declared war on
the Reich, denied at the sedition
trial today a defense motion to
suppress evidence seized under a
wartime presidential warrant.
In a decision that may set a
precedent, the District Court justice
ruled that the courts could not re-
view the power Of the Executive
Department to forestall enemy ac-
tions. Clearly, he decided, this
country was in q state of war when
Japan struck, not only with that
country, but with all the Axis pow
ers.
Documents which the Govern
ment is about to offer in evidence
are included in papers and books
seized December 8. 1941, at the
Deutsches Haus, German American
Bund headquarters in Los Angeles
Presidential Warrant Cited.
At q special hearing held in the
absence Of the jury, the Govern
ment brought out that during the
raid two of the 26 defendants on
trial, Herman Max Schwinn and
Hans Diebel, were arrested by au-
thority OF presidential warrant
signed in Washington that day by
Attorney General Biddle, describing
them as potentially dangerous en-
emy aliens.
William A. Gallagher and Claude
A. Thompson, attorneys for Schwinn
and Diebel, contended the United
States was not at war with Ger
many until December II, when
Congress acted, and that the presi-
Dental warrants were invalid.
In denying their motion, Justice
Eicher said that while it was true
Congress alone had the power to
declare war, the court would take
judicial notice that on December 8
the attack on Pearl Harbor had been
made. This attack was not by the
nations of the two defendants the
court conceded but their country
was an active partner of Japan, and
there could be no doubt the United
States, by executive decree, was in
a state of war with all the Axis
powers, the court said.
Formal Statement Unnecessary.
THE judicial branch" the Judge
added, would be entirely outside its
province to assume to review the
executive power to recognize that a
state of war existed"
The courts from time immemorial
have recognized that war may exist
without a formal declaration by
either party, the court pointed out.
Taking up another question raised
at the hearing, Justice Eicher held
the evidence indicated Schwinn and
Diebel consented to the search Of
the bund headquarters.
Justice Eicher indicated that since
the evidence showed some of the
material seized was the personal
property of Schwinn and not con-
cerned in bund activities, he would
consider later motion to return
those articles. Chief Prosecutor O.
John Rogge suggested that this mat
ter be held in allegiance until the
Government offered in evidence the
documents it considered material.
Two FBI agents, Howard H. Davis
and Ira J. Kellogg, testified that
the defendants consented to the
search, and that Schwinn, who was
West Coast bund leader, Coop
Grated by turning over his keys and
taking the Federal men on a tour
Of the Deutsches Haus.
Signing Of Waivers Admitted.
Schwinn and Diebel denied they
had consented, though they ad-
mitted signing valves to any pro-
test days later. Diebel was pro-
prietor of the Aryan Book Store,
located in the bund's house.
Mr.. Gallagher. in arguing his mo-
ton, charged that the procedure
used in the search and seizure
might have conformed to the Soviet
law, but had no place in the United
States. This country was still at
peace with Germany. he contended,
and the presidential warrant
charged the defendants with a
crime 'in futuro."
The agents admitted carrying out
the raid without a search warrant.
Mr.. Gallagher maintained this was
because the Government had no
evidence on which to base q search
warrant.
When the jury returned, after an
absence of ~ hours, a Government
witness, Miss Alma McGroarty of
Alexandria, Va, was cross-examined
Miss McGroarty testified last week
to overhearing conversations be-
tween James True, q former de-
fendant, who had rented the second
floor Of her house, and George
Deathefage. . defendant. She said