The indictment in this case contained four counts, each charging a violation of the Espionage Act. Act June 15, 1917, c. 30, 40 Stat. 217 -219. The third count was dismissed before trial. Upon the trial the jury found the defendant not guilty as to counts 1 and 2 of the indictment, and guilty as to count 4. The fourth count charges:

In support of this charge, Luther Davis, one of the persons to whom the defendant is alleged to have made the statements set forth in the indictment, testified upon the trial:

Questioned as to what conversation took place at that time, the witness testified:

Being asked,' “Now, what effect did the conversations of Rhuberg have with you subsequent to our entrance into the war?” the witness answered, “It didn’t have much of any; that didn’t.” Being further questioned, “What was the reason of the change?” the witness answered, “Well, other people talked to me; different people around; I quit visiting Borstels, and other people got talking to me, and I got it out of my head; it put me to thinking.” Answering a question of the court, witness testified that defendant appeared to be very much in earnest at the time of his last conversation with him about the war, and appeared to try to impress upon the witness what he said.

The witness, being further examined, was asked on cross-examination :

Witness answered:

[1] In the spring of 1917, and before the United States went into the war, the witness had discussed the war with the defendant, at which time the defendant said:

It is contended by the plaintiff in error that the court erred* in permitting the witness to testify to the last-mentioned statement made by the defendant prior to the entry of the United States into the war. The court instructed the jury that this evidence had been admitted for a special purpose, ,£.nd consideration of it would be confined to that purpose only, viz.:

To show so far as it has a tendency in that direction, the bent of mind and attitude of this defendant, whether more favorably disposed^ towards Germany than to this country, and the effect such attitude, whatever it was, may have had upon his subsequent acts and demeanor, as an aid for determining with what intent he used the language imputed to him by the indictment, if it appears that he uttered the same or some substantial part thereof..

The defendant took'the stand in his own behalf and denied in a large measure the utterances imputed to him, and as to others he disclaimed any wrong or disloyal intention. In determining the credibility of his statements, the court instructed the jury to take into consideration the testimony of the government which tended to his inculpation, his former history and deportment, his bent of mind, so far as was disclosed by the testimony, and the defendant’s predilection, if any, whether favorable or unfavorable to this government, and what leaning, if any, he had towards Germany as against this government in the present crisis, or whether his present leaning was one of loyalty to this government, and from all this, together with all the other testimony in the case bearing upon the subject of inquiry, ascertain and determine, by a calm, fair, and impartial inquiry and investigation, uninfluenced by any present passion or prejudice, the truth of the charge made against the defendant.

This evidence of statements of the defendant made prior to the entry of the United States into the war, thus restricted and limited by the court was clearly admissible under a well-known rule of evidence upon that subject. Jones on Evidence, par. 142; Jones v. United States, 179 Fed. 584 , 103 C. C. A. 142 ; Williamson v. United States, 207 U. S. 425 -451, 28 Sup. Ct. 163, 52 L. Ed. 278 .

[2] It is also contended that there should have been a directed verdict in favor of the defendant, because of the alleged variance between the charge contained in the fourth count, “that * * * the defend *869 ant did then and there speak, debate, and agitate to and in the pres.ence of William Mitchell and Luther Davis and others,” making the statements heretofore mentioned as having been made after the entry of the United States into the war, and the evidence in support of the charge that the statement was made to Davis only. The number of persons to whom the statement was made did not change its character, or the intent and purpose of the defendant. If the statement was an obstruction to the recruiting or enlistment service of the United States, to the injury of the service of the United States, it was as much so when made to one person as when made to more than one. Its criminal character is determined by the intent and purpose of the person making the statement, and not by the number of persons to whom it was made. The failure to prove that Mitchell was present at the time the statement was made to Davis did not prejudice the defendant in any way, and is not a variance under the rule. Bennett v. U. S., 194 Fed. 630 -633, 114 C. C. A. 402 , affirmed by the Supreme Court in 227 U. S. 333 -338, 33 Sup. Ct. 288, 57 L. Ed. 531 ; Jones v. U. S., 179 Fed. 584 -593, 103 C. C. A. 142 .

[3] It is further contended that the court should have directed a verdict in favor of the defendant for the reason that there was no proof of the actual obstruction by the defendant of the recruiting or enlistment service of the United States, to the injury of the service or of the United States. The defendant requested the court to instruct the jury that there must have resulted from the statements of the defendant some injury to the recruiting or enlistment service of the United States, and that, as the government had not shown that such statements did in fact result in any injury, either to the recruiting or enlistment service of the United States or to the United States, the verdict should have been directed for the defendant. The question whether the statement of the defendant did result in an obstruction to the recruiting or enlistment service of the United States, to the injury of the service, or to the United States, was clearly a question of fact, to be determined by the jury from all the surrounding circumstances and reasonable inferences to be drawn from established facts under proper instructions from the court. Judge Wolverton instructed the jury upon this feature of the case as follows:

It is contended on behalf of the defendant that the government was required to prove that the defendant’s statement accomplished an actual obstruction as distinguished from an attempt to obstruct and proof of injury resulting therefrom to the service or to the United States. In support of this contention, the attention of the court is called to the fact that the act under consideration was amended by the Act of May 16, 1918, c. 75, § 1, 40 Stat. 553 , Comp. St. 1918, § 10212c (Public No. 150, 65th Congress), so that the clause of. the statute under consideration now reads:

This amendment was only one of many provisions amending the statute relating to various acts obstructing the government in the prosecution of the war, and was evidently intended to overcome certain technical objections, and enlarge the scope of the statute,'so as to include every possible obstruction that might be interposed against the efforts of the government to prosecute a successful war. But it does .not follow that the facts in this case did not bring it within the terms of the original statute. We think they did. The loyalty of Davis to the government and his spirit of patriotism was clearly diverted and obstructed by the defendant’s statement that “we had no business in the war, no call whatever to be in the war,” and his advice to witness “not to enlist, not ‘to get into the army until after he was drafted.” All this had its effect upon Davis, and it was not until after he had talked with other people that he came back to his true course.

The decision of Judge' Bourquin in U. S. v. Hall (D. C.) 248 Fed. 150 -153, upon a similar state of facts, does not convince us to the contrary, and an examination of the various cases where this question has been considered reveals the fact that nearly all the District Judges, where this statute has been under consideration are in accord with Judge Wolverton’s instructions to the jury in this case. These cases are reported in Bulletins issued by the Department of Justice, as follows: Bulletin No. 4 (U. S. v. Daniel H. Wallace); Bulletin No. 15 (U. S. v. C. H. Pierce [D. C.] 245 Fed. 878 ); Bulletin No. 49 (U. S. v. Kate O’Hare); Bulletin No. 53 (U. S. v. Orlando Hitt); Bulletin No. 55 (U. S. v. Perley Doe); Bulletin No. 56 (U. S. v. W. B. *871 Tanner); Bulletin No. 76 (U. S. v. S. J. Harper); Bulletin No. 78 (U. S. v. Leonard Foster); Bulletin No. 79 (U. S. v. C. H. Waldron); Bulletin No. 81 (U. S. v. J. H. Wolfe); Bulletin No. 82 (U. S. v. Gistave Pundt); Bulletin No. 83 (U. S. v. Harold Mackley); Bulletin No. 85 (U. S. v. Henry Fredricks); Bulletin No. 86 (U. S. v. H. M. Hendrickson); Bulletin No. 89 (U. S. v. Conrad Kornmann); Bulletin No. 90 (U. S. v. Joseph Zittel); Bulletin No. 106 (U. S. v. Rose Pastor Stokes); Bulletin No. 108 (U. S. v. Gustave Taubert); Bulletin No. 109 (U. S. v. Emiel Herman); Bulletin No. 112 (U. S. v. Dick Windmueller); Bulletin No. 120 (U. S. v. J. I. Graham); Bulletin No. 122 (U. S. v. Amos Hitchcock).

In the Second-Circuit, in Masses Pub. Co. v. Patten, 246 Fed. 38 , 158 C. C. A. 250 , L. R. A. 1918C, 79, in the Third Circuit in United States v. Krafft, 249 Fed. 919 , C. C. A. -, in the Fourth Circuit in Kirchner v. United States, Bulletin of Department of Justice No. 174, in the Eighth Circuit in O’Hare v. United States, 253 Fed. 538 , —C. C. A. -, and in Doe v. United States, 253 Fed. 903 906 , - C. C. A. -, the Circuit Courts of Appeals in these circuits affirm judgments where the objections were of the same character here presented.

[4] It is contended that the court was in error in overruling defendant’s motion in arrest of judgment on the ground that the indictment failed to allege the intended recruiting or enlistment in the military or naval forces of the United States of William Mitchell or Eutlier Davis, and for the further reason that the indictment failed to charge defendant with knowledge or notice of their intended enlistment or recruiting in such service. That statute does not require such allegations in the indictment or such proof as elements of its violation. The indictment follows the words of the statute with such statement of facts and circumstances as sufficiently identify the acts charged as an offense against the defendant. This is all that is required.

The refusal of the court to grant a new trial is an objection, as has been repeatedly stated, that can only be made in this court as a ground for reversal when there was no evidence to support the verdict. There is no such ground for reversal in this case.

The judgment of the court is affirmed.