Mr. Justice Black

delivered the opinion of the Court.

The petitioner, an American citizen of Japanese descent, was convicted in a federal district court for remaining in San Leandro, California, a “Military Area,” contrary to Civilian Exclusion Order No. 34 of the Commanding Gen*216eral of the Western Command, U. S. Army, which directed that after May 9, 1942, all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner's loyalty to the United States. The Circuit Court of Appeals affirmed,1 and the importance of the constitutional question involved caused us to grant certiorari.

It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.

In the instant case prosecution of the petitioner was begun by information charging violation of -an Act of Congress, of March 21, 1942, 56 Stat. 173, which provides that

“. . . whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions, applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should, have known of the existence and extent of the restrictions or .order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense.”

Exclusion Order No. 34, which the petitioner knowingly'and admittedly violated, was one of a number of military orders and proclamations, all of which were sub*217stantially based upon Executive Order No. 9066, 7 Fed. Reg. 1407. That order, issued after we were at war with Japan, declared that “the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities. . . .”

One of the series of orders and proclamations, a curfew order, which like the exclusion order here was promulgated pursuant to Executive Order 9066, subjected all persons of Japanese ancestry in prescribed West Coast military areas to remain in their residences from 8 p. m. to 6 a. m. As is the case with the exclusion order here, that prior curfew order was designed as a “protection against espionage and against sabotage.” In Hirabayashi v. United States, 320 U. S. 81, we sustained a conviction obtained for violation of the curfew order. The Hirabayashi conviction and this one thus rest on the same 1942 Congressional Act and the same basic executive and military orders, all of which orders were aimed at the twin dangers of espionage and sabotage.

The 1942 Act was attacked in the Hirabayashi case as an unconstitutional delegation of power’; it was contended that the curfew order and other orders on which it rested were beyond the war powers of the Congress, the military authorities and of the President, as Commander in Chief of the Army; and finally that to apply the curfew order against none but citizens of Japanese ancestry amounted to a constitutionally prohibited discrimination solely on account of race. To these questions, we gave the serious consideration which their importance justified. We upheld the curfew order as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack.

In the light of the principles we announced in the Hirabayashi case, we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude *218those of Japanese ancestry from the West Coast war area at the time they did. True, exclusion from the area in which one’s home is located is a far greater deprivation than constant confinement to the home from 8 p. m. to 6 a. m. Nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either. But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided -inadequate protection and ordered exclusion. They did so, as pointed out in our Hirabayashi opinion, in accordance with Congressional authority to the military to say who should, and who should not, remain in the threatened areas.

In this case the petitioner challenges the assumptions upon which we rested our conclusions in the Hirabayashi case. He also urges that by May 1942, when Order No. 34 was promulgated, all danger of Japanese invasion of the West Coast had disappeared. After careful consideration of these contentions we are compelled to reject them.

Here, as in the Hirabayashi case, supra, at p. 99, “. . . we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it.”

Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of *219whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. The judgment that exclusion of the whole group was for the same reason a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin. That there were members of the group who retained loyalties to Jap§,n has been confirmed by investigations made subsequent to the exclusion. Approximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan.2

We uphold the exclusion order as of the time it was made and when the petitioner violated it. Cf. Chastleton Corporations. Sinclair, 264 U. S. 543, 547; Block v. Hirsh, 256 U. S. 135, 154-5. In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens. Cf. Ex parte Kawato, 317 U.S. 69, 73. But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. Compulsory *220exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.

It is argued that on May 30, 1942, the date the petitioner was charged with remaining in the prohibited area, there were conflicting orders outstanding, forbidding him both to leave the area and to remain there. Of course, a person cannot be convicted for doing the very thing which it is a crime to fail to do. But the outstanding orders here contained no such contradictory commands.

There was an order issued March 27, 1942, which prohibited petitioner and others of Japanese ancestry from leaving the area, but its effect was specifically limited in time “until and to the extent that a future proclamation or order should so permit or direct,” 7 Fed. Reg. 2601. That “future order,” the one for violation of which petitioner was convicted, was issued May 3, 1942, and it did “direct” exclusion from the arpa of all persons of Japanese ancestry, before 12 o’clock noon, May 9; furthermore it contained a warning that all such persons found in the prohibited area would be liable to punishment under the March 21, 1942 Act of Congress. Consequently, the only order in effect touching the petitioner’s being in the area on May 30, 1942, the date specified in the information against him, was the May 3 order which prohibited his remaining there, and it was that same order, which he stipulated in his trial that he had violated, knowing of its existence. There is therefore no basis for the argument that on May 30, 1942, he was subject to punishment, under the March 27 and May 3 orders, whether he remained in pr left the area.

It does appear, however, that on May 9, the effective date of the exclusion order, the military, authorities had *221already determined that the evacuation should be effected by assembling together and placing under guard all those of Japanese ancestry, at central points, designated as “assembly centers,” in order “to insure the orderly evacuation and resettlement of Japanese voluntarily migrating from Military Area No. 1, to restrict and regulate such migration.” Public Proclamation No. 4, 7 Fed. Reg. 2601. And on May 19, 1942, eleven days before the time petitioner was charged with unlawfully remaining in the area, Civilian Restrictive Order No. 1, 8 Fed. Reg. 982, provided for detention of those , of Japanese ancestry in assembly or relocation centers. It is now argued that the validity of the exclusion order cannot be considered apart from the orders requiring him, after departure from the area, to report and to remain in an assembly or relocation center. The contention is that we must treat these separate orders as one and inseparable; that, for this reason, if detention in the assembly or relocation center would have illegally deprived the petitioner of his liberty, the exclusion order and his conviction under it cannot stand.

We are thus being asked to pass at this time upon the whole subsequent, detention program in both assembly and relocation centers, although the only issues framed at the trial related to petitioner’s remaining in the prohibited area in violation of the exclusion order. Had. petitioner here left the prohibited area and gone to an assembly center we cannot say either as a matter of fact or law that his presence in that center would have resulted in his detention in a relocation center. Some who did report to the assembly center were not sent to relocation centers, but were released upon condition that they remain outside the prohibited zone until the military orders were modified or lifted. This illustrates that they pose different problems and may be governed by different principles. The lawfulness of one does not necessarily determine the lawfulness of the others. This is made clear *222when we analyze the requirements of the separate provisions of the separate orders. These separate requirements were that those of Japanese ancestry (1) depart from the area; (2) report to and temporarily remain in an assembly center; (3) go under military control to a relocation center there to remain for an indeterminate period until released conditionally or unconditionally by the military authorities. Each of these requirements, it will be noted, imposed distinct duties in connection with the separate steps in a complete evacuation program. Had Congress directly incorporated into one Act the language of these separate orders, and provided sanctions for their violations, disobedience of any one would have constituted a separate offense. Cf. Blockburger v. United States, 284 U. S. 299, 304. There is no reason why violations of these orders, insofar as they were promulgated pursuant to Congressional enactment, should not be treated as separate offenses.

The Undo case, post, p. 283, graphically illustrates the difference between the validity of an order to exclude and the validity of a detention order after exclusion has been effected.

Since the petitioner has not been convicted of failing to report or to remain in an assembly or relocation center, we cannot in this ease determine the validity of those separate provisions of the order. It is sufficient here for us to pass upon the order which petitioner violated. To do more would be to go beyond the issues raised, and to decide momentous questions not contained within the framework of the pleadings or the evidence in this case. It will be time enough to decide the serious constitutional issues which petitioner seeks to raise when an assembly or relocation order is applied or is certain to be applied to him, and we have its terms before us.

Some of the members of the Court are of the view that evacuation and detention in an Assembly Center were inseparable. After May 3, 1942, the date of Exclusion *223Order No. 34, Korematsu was under compulsion to leave the area not as he would choose but via an Assembly Center. The Assembly Center was conceived as a part of the machinery for group evacuation. The power to exclude includes the power to do it by force if necessary. And any forcible measure must necessarily entail some degree of detention or restraint whatever method of removal is selected. But whichever view is taken, it results in holding that the order under which petitioner was convicted was valid.

It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers — and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies — we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders — as inevitably it must — determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for *224action was great, and time was short. We cannot — by availing ourselves of the calm perspective of hindsight— now say that at that time these actions were unjustified.

Affirmed.

Mr. Justice Frankfurter,

concurring.

According to my reading of Civilian Exclusion Order No. 34, it was an offense for Korematsu to be found in Military Area No. 1, the territory wherein he was previously living, except within the bounds of the established Assembly Center of that area. Even though the various orders issued by General DeWitt be deemed a comprehensive code of instructions, their tenor is clear and not contradictory. They put upon Korematsu the obligation to leave Military Area No. 1, but only by the method prescribed in the instructions, i. e., by reporting to the Assembly Center. I am unable to see how the legal considerations that led to the decision in Hirabayashi v. United States, 320 U. S. 81, fail to sustain the military order which made the conduct now in controversy a crime. And so I join in the opinion of the Court, but should like to add a few words of my own.

The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is “the power to wage war successfully,” Hirabayashi v. United States, supra at 93; and see Home Bldg. & L. Assn. v. Blaisdell, 290 U. S. 398, 426. Therefore, the validity of' action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless. To talk about a military order that expresses an allowable judgment of war needs by those entrusted with the dirty of conducting war as “an *225unconstitutional order” is to suffuse a part of the Constitution with an atmosphere of unconstitutionality. The respective spheres of action of military authorities and of judges are of course very different. But within their sphere, military authorities are no more outside the bounds of obedience to the Constitution than are judges within theirs. “The war power of the United States, like its other powers ... is subject to applicable constitutional limitations”, Hamilton v. Kentucky Distilleries Co., 251 U. S. 146, 156. To recognize that military orders are “reasonably expedient military precautions” in time of war and yet to deny them constitutional legitimacy makes of the Constitution an instrument for dialectic subleties not reasonably to be attributed to the hard-headed Framers, of whom a majority had had actual participation in war. If a military order such as that under review does not transcend the means appropriate for conducting war, such action by the military is as constitutional as would be any authorized action by the Interstate Commerce Commission within the limits of the constitutional power to regulate commerce. And being an exercise of the war power explicitly granted by the Constitution for safeguarding'the national life by prosecuting war effectively, I find nothing in-the Constitution which denies to Congress the power to enforce such a valid military order by making its violation an offense triable in the civil courts. Compare Interstate Commerce Commission v. Brimson, 154 U. S. 447; 155 U. S. 3, and Monongahela Bridge Co. v. United States, 216 U. S. 177. To find that the Constitution does not forbid the military measures now complained of does not carry with it approval of that which Congress and the Executive did. That is their business, not outs.

Mr. Justice Roberts.

I dissent, because I think the indisputable facts exhibit a clear violation of Constitutional rights.

This is not a case of keeping people off the streets at night as was Hirabayashi v. United States, 320 U. S. 81, *226nor a case of temporary exclusion of a citizen from an area for his own safety or that of the community, nor a case of offering him an opportunity to go temporarily out of an area where his presence might cause danger to himself or to his fellows. On the contrary, it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. If this be a correct statement of the facts disclosed by this record, and facts of which we take judicial notice, I need hardly labor the conclusion that Constitutional rights have been violated.

The Government’s argument, and the opinion of the court, in my judgment, erroneously divide that which is single and indivisible and thus make the case appear as if the petitioner violated a Military Order, sanctioned by Act of Congress, which excluded him from his home, by refusing voluntarily to leave and, so, knowingly and intentionally, defying the order and the Act of Congress.

The petitioner, a resident of San Leandro, Alameda County, California, is a native of the United States of Japanese ancestry who, according to the uncontradicted evidence, is a loyal citizen of the nation.

A chronological recitation of events will make it plain that the petitioner’s supposed offense did not, in truth, consist in his refusal voluntarily to leave the area which included his home in obedience to the order excluding him therefrom. Critical attention must be given to the dates and sequence of events.

December 8, 1941, the United States declared war on Japan.

February 19, 1942, the President issued Executive Order No. 9066,1 which, after stating the reason for issuing the *227order as “protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities,” provided that certain Military Commanders might, in their discretion, “prescribe military areas” and define their extent, “from which any or all persons may be excluded, and with respect to which the right of any person to enter, remain in, or leave shall be subject to whatever restrictions” the “Military Commander may impose in his discretion.”

February 20, 1942, Lieutenant General DeWitt was designated Military Commander of the Western Defense Command embracing the westernmost states of the Union, — about one-fourth of the total area of the nation.

March 2, 1942, General DeWitt promulgated Public Proclamation No. 1,2 which recites that the entire Pacific Coast is “particularly subject to attack, to attempted invasion . . . and, in connection therewith, is subject to espionage and acts of sabotage.” It states that “as a matter of military necessity” certain military areas and zones are established known as Military Areas Nos. 1 and 2. It adds that “Such persons or classes of persons as the situation may require” will, by subsequent orders, “be excluded from all of Military Area No. 1” and from certain zones in Military Area No. 2. Subsequent proclamations were made which, together with Proclamation No. 1, included in such areas and zones all of California, Washington, Oregon, Idaho, Montana, Nevada and Utah, and the southern portion of Arizona. The orders required that if any person of Japanese, German or Italian ancestry residing in Area No. 1 desired to change his habitual residence he must execute and deliver to the authorities a Change of Residence Notice.

San Leandro, the city of petitioner’s residence, lies in Military Area No. 1.

*228On March 2, 1942, the petitioner, therefore, had notice that, by Executive Order, the President, to prevent espionage and sabotage, had authorized the Military tO' exclude him from certain areas and to prevent his entering or leaving certain areas without permission. He was on notice that his home city had been included, by Military Order, in Area No. 1, and he was on notice further that, at sometime in the future, the Military Commander would make an order for the exclusion of certain persons, not described or classified, from various zones including that in which he lived.

March 21, 1942, Congress enacted3 that anyone who knowingly “shall enter, remain in, leave, or commit any act in any military area or military zone prescribed . . . by any military commander . . . contrary to the restrictions applicable to any such area or zone or contrary to the order of . . . any such military commander” shall be guilty of a misdemeanor. This is the Act under which the petitioner was charged.

March 24, 1942, General DeWitt instituted the curfew for certain areas within his command, by an order the validity of which was sustained in Hirabayashi v. United States, supra.

March 24, 1942, General DeWitt began to issue a series of exclusion orders relating to specified areas.

March 27, 1942, by Proclamation No. 4,4 the General recited that “it is necessary, in order to provide for the welfare and to insure the orderly evacuation and resettlement of Japanese voluntarily migrating from Military Area No. 1, to restrict and regulate such migration”; and ordered that, as of March 29, 1942, “all alien Japanese and persons of Japanese ancestry who are within the limits of Military Area No. 1, be and they are hereby *229prohibited from leaving that area for any purpose until and to the extent that a future proclamation or order of this headquarters shall so permit or direct.” 5

No order had been made excluding the petitioner from the area in which he lived. By Proclamation No. 4 he was, after March 29, 1942, confined to the limits of Area No. 1. If the Executive Order No. 9066 and the Act of Congress meant what they said, to leave that area, in the face of Proclamation No. 4, would be to commit a misdemeanor.

May 3, 1942, General DeWitt issued Civilian Exclusion Order No. 34 6 providing that, after 12 o’clock May 8, 1942, all persons of Japanese ancestry, both alien and non-alien, were to be excluded from a described portion of Military Area No. 1, which included the County of Alameda, California. The order required a responsible member of each family and each individual living alone to report, at a time set, at a Civil Control Station for instructions to go to an Assembly Center, and added that any person failing to comply with the provisions of the order who was found in the described area after the date set would be liable to prosecution under the Act of March 21, 1942, supra. It is important to note that the order, by its express terms, had no application to persons within the bounds “of an established Assembly Center pursuant to instructions from this Headquarters . . The obvious purpose of the orders made, taken together, was to drive all citizens of Japanese ancestry into Assembly Centers within the zones of their residence, under pain of criminal prosecution.

*230The predicament in which the petitioner thus found himself was this: He was forbidden, by Military Order, to leave the zone in which he lived; he was forbidden, by Military Order, after a date fixed, to be found within that zone unless he were in an Assembly Center located in that zone. General DeWitt’s report to the Secretary of War concerning the programme of evacuation and relocation of Japanese makes it entirely clear, if it were necessary to refer to that document, — and, in the light of the- above recitation, I think it is not, — that an Assembly Center was a euphemism for a prison. No person within such a center was permitted to leave except by Military Order.

In the dilemma that he dare not remain in his home, or voluntarily leave the area, without incurring criminal penalties, and that the only way he could avoid punishment was to go to an Assembly Center and submit himself to military imprisonment, the petitioner did nothing.

June 12, 1942, an Information was filed in the District Court for Northern California charging a violation of the Act of March 21, 1942, in that petitioner had knowingly remained within the area covered by Exclusion Order No. 34. A demurrer to the information having been overruled, the petitioner was tried under a plea of not guilty and convicted. Sentence was suspended and he was placed on probation for five years. We know, however, in the light of the foregoing recitation, that he was at once taken into military custody and lodged in an Assembly Center. We further know that, on March 18, 1942, the President had promulgated Executive Order No. 91027 establishing the War Relocation Authority under which so-called Relocation Centers, a euphemism for concentration camps, were established pursuant to cooperation between the military authorities of the Western Defense Command and the Relocation Authority, and that the petitioner has *231been confined either in an Assembly Center, within the zone in which he had lived or has been removed to a Relocation Center where, as the facts disclosed in Ex parte Endo (post, p. 283) demonstrate, he was illegally held in custody.

The Government has argued this case as if the only order outstanding at the time the petitioner was arrested and informed against was Exclusion Order No. 34 ordering him to leave the area in which he resided, which was the basis of the information against him. That argument has evidently been effective. The opinion refers to the Hirabayashi case, supra, to show that this court has sustained the validity of a curfew order in an emergency. The argument then is that exclusion from a given area of danger, while somewhat more sweeping than a curfew regulation, is of the same nature, — & temporary expedient made necessary by a sudden emergency. This, I think, is a substitution of an hypothetical case for the case actually before the court. I might agree with the court's disposition of the hypothetical case.8 The liberty of every American citizen freely to come and to go must frequently, in the face of sudden danger, be temporarily limited or suspended. The civil authorities must often resort to the expedient of excluding citizens temporarily from a locality. The drawing of fire lines in the case of a conflagration, the removal of persons from the area where a pestilence has broken out, are familiar examples. If the exclusion Worked by Exclusion Order No. 34 were of that nature the Hirabayashi case would be authority for sustaining it. *232But the facts above recited, and those set forth in Ex parte Endo, supra, show that the exclusion was but a part of an over-all plan for forceable detention. This case cannot, therefore, be decided on any such narrow ground as the possible validity of a Temporary Exclusion Order under which the residents of an area are given an opportunity to leave and go- elsewhere in their native land outside the boundaries of a military area. To make the case turn on any such assumption is to shut our eyes to reality.

As I have said above, the petitioner, prior to his arrest, was faced with two diametrically contradictory orders given sanction by the Act of Congress of March 21, 1942. The earlier of those orders made him a criminal if he left the zone in which he resided; the later made him a criminal if he did not leave.

I had supposed that if a citizen was constrained by two laws, or two orders having the force of law, and obedience to one would violate the other, to punish him for violation of either would deny him due process of law. And I had supposed that under these circumstances a conviction for violating one of the orders could not stand.

We cannot shut our eyes to the fact that had the petitioner attempted to violate Proclamation No. 4 and leave the military area in which he lived he would have been arrested and tried and convicted for violation of Proclamation No. 4. The two conflicting orders, one which commanded him to. stay and the other which commanded him to go, were nothing but a cleverly devised trap, to accomplish the real purpose of the military authority, which was to lock him up in a concentration camp. The only course by which the petitioner could avoid arrest and prosecution was to go to that camp according to. instructions to be given him when he reported at a Civil Control Center. We know that is the fact. Why should we set up a figmentary and artificial situation instead of addressing ourselves to the actualities of the case?

*233These stark realities are met by the suggestion that it is lawful to compel an American citizen to submit to illegal imprisonment on the assumption that he might, after going to the Assembly Center, apply for his discharge by suing out a writ of habeas corpus, as was done in the Endo case, supra. The answer, of course, is that where he was subject to two conflicting laws he was not bound, in order to escape violation of one or the other, to surrender his liberty for any period. Nor will it do to say that the detention was a necessary part of the process of evacuation, and so we are here concerned only with the validity of the latter.

Again it is a new doctrine of constitutional law that one indicted for disobedience to an unconstitutional statute may not defend on the ground of the invalidity of the statute but must obey it though he knows it is no law and, after he has suffered the disgrace of conviction and lost his liberty by sentence, then, and not before, seek, from within prison walls, to test the validity of the law.

Moreover, it is beside the point to rest decision in part on the fact that the petitioner, for his own reasons, wished to remain in his home. If, as is the fact, he was constrained so to do, it is indeed a narrow application of constitutional rights to ignore the order which constrained him, in order to sustain his conviction for violation of another contradictory order.

I would reverse the judgment of conviction.

Mr. Justice Murphy,

dissenting.

This exclusion of “all persons of Japanese ancestry, both alien and non-alien,” from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over “the very brink of constitutional power” and falls into the ugly abyss of racism.

In dealing with matters relating to the prosecution and progress of a war, we must accord great respect and con*234sideration to the judgments of the military authorities who are on the scene and who have full knowledge of the military facts. The scope of their discretion must, as a matter of necessity and common sense, be wide. And their judgments ought not to be overruled lightly by those whose training and duties ill-equip them to deal intelligently with matters so vital to the physical security of the nation.

At the same time, however, it is essential that there be definite limits to military discretion, especially where martial law has not been declared. Individuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support. Thus, like other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled. “What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.” Sterling v. Constantin, 287 U. S. 378, 401.

The judicial test of whether the Government, on a plea of military necessity, can validly deprive an individual of any of his constitutional rights is whether the deprivation is reasonably related to a public danger that is so “immediate, imminent, and impending” as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger. United States v. Russell, 13 Wall. 623, 627-8; Mitchell v. Harmony, 13 How. 115, 134-5; Raymond v. Thomas, 91 U. S. 712, 716. Civilian Exclusion Order No. 34, banishing from a prescribed area of the Pacific Coast “all persons of Japanese ancestry, both alien and non-alien,” clearly does not meet that test. Being an obvious racial discrimination, the *235order deprives all those within its scope of the equal protection of the laws as guaranteed by the Fifth Amendment. It further deprives these individuals of their constitutional rights to live and work where they will, to establish a home where they choose and to move about freely. In excommunicating them without benefit of hearings, this order also deprives them of all their constitutional rights to procedural due process. Yet no reasonable relation to an “immediate, imminent, and impending” public danger is evident to support this racial restriction which is one of the most sweeping and complete deprivations of constitutional rights in the history of this nation in the absence of martial law.

It must be conceded that the military and naval situation in the spring of 1942 was such as to generate a very real fear of invasion of the Pacific Coast, accompanied by fears of sabotage and espionage in that area. The military command was therefore justified in adopting all reasonable means necessary to combat these dangers. In adjudging the military action taken in light of the then apparent dangers, we must not erect too high or too meticulous standards; it is necessary only that the action have some reasonable relation to the removal of the dangers of invasion, sabotage and espionage. But the exclusion, either temporarily or permanently, of all persons with Japanese blood in their veins has no such reasonable relation. And that relation is lacking because the exclusion order necessarily must rely for its reasonableness upon the assumption that all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and espionage and to aid our Japanese enemy in other ways. It is difficult to believe that reason, logic or experience could be marshalled in support of such an assumption.

That this forced exclusion was the result in good measure of this erroneous assumption of racial guilt rather than *236bona fide military necessity is evidenced by the Commanding General’s Final Report on the evacuation from the Pacific Coast area.1 In it he refers to all individuals of Japanese descent as “subversive,” as belonging to “an enemy race” whose “racial strains are undiluted,” and as constituting “over 112,000 potential enemies ... at large today” along the Pacific Coast.2 In support of this blanket condemnation of all persons of Japanese descent, however, no reliable evidence is cited to show that such individuals were generally disloyal,3 or had generally so conducted themselves in this area as to constitute a special menace to defense installations or war industries, or had otherwise by their behavior furnished reasonable ground for their exclusion as a group.

Justification for the exclusion is sought, instead, mainly upon questionable racial and sociological grounds not *237ordinarily within the realm of expert military judgment, supplemented by certain semi-military conclusions drawn from an unwarranted use of circumstantial evidence. Individuals of Japanese ancestry are condemned because they are said to be “a large, unassimilated, tightly knit racial group, bound to an enemy nation by strong ties of race, culture, custom and religion.”4 They are claimed to be given to “emperor worshipping ceremonies” 5 and to “dual citizenship.” 6 Japanese language schools and allegedly pro-Japanese organizations are cited as evidence of possible group disloyalty,7 together with facts as to *238certain persons being educated and residing at length in Japan.8 It is intimated that many of these individuals deliberately resided “adjacent to strategic points,” thus enabling them “to carry hito execution a tremendous program of sabotage on a mass scale should any considerable number of them have been inclined to do so.” 9 The need for protective custody is also asserted. The report refers without identity to “numerous incidents of violence” as well as to other admittedly unverified or cumulative incidents. From this, plus certain other events not shown to have been connected with the Japanese Americans, it is concluded that the “situation was fraught with danger to the Japanese population itself” and that the general public “was ready to take matters into its own hands.”10 Finally, it is intimated, though not directly *239charged or proved, that persons of Japanese ancestry were responsible for three minor isolated shellings and bombings of the Pacific Coast area,11 as well as for unidentified radio transmissions and night signalling.

The main reasons relied upon by those responsible for the forced evacuation, therefore, do not prove a reasonable relation between the group characteristics of Japanese Americans and the dangers of invasion, sabotage and espionage. The reasons appear, instead, to be largely an accumulation of much of the misinformation, half-truths and insinuations that for years have been directed against Japanese Americans by people with racial and economic prejudices — the same people who have been among the foremost advocates of the evacuation.12 A military judg*240ment based upon such racial and sociological considerations is not entitled to the great weight ordinarily given the judgments based upon strictly military considerations. Especially is this so when every charge relative to race, religion, culture, geographical location, and legal and economic status has been substantially discredited by independent studies made by experts in these matters.13

The military necessity which is essential to the validity of the evacuation order thus resolves itself into a few intimations that certain individuals actively aided the enemy, from which it is inferred that the entire group of Japanese Americans could not be trusted to be or remain loyal to the United States. No one denies, of course, that there were some disloyal persons of Japanese descent on the Pacific Coast who did all in their power to' aid their ancestral land. Similar disloyal activities have been engaged in by many persons of German, Italian and even more pioneer stock in our country. But to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that under our system of law individual guilt is the sole basis for deprivation of rights. Moreover, this inference, which is at the very heart of the evacuation orders, has been used in support of the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation js now pledged to destroy. ' To give constitutional sanction to that inference in this case, however well-intentioned may have been the military command on the Pacific Coast, is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow.

*241No adequate reason is given for the failure to treat these Japanese Americans on an individual basis by holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of persons of German and Italian ancestry. See House Report No. 2124 (77th Cong., 2d Sess.) 247-52. It is asserted merely that the loyalties of this group “were unknown and time was of the essence.” 14 Yet nearly four months elapsed after Pearl Harbor before the first exclusion order was issued; nearly eight months went by until the last order was issued; and the last of these “subversive” persons was not actually removed until almost eleven months had elapsed. Leisure and deliberation seem to have been more of the essence than speed. And the fact that conditions were not such as to warrant a declaration of martial law adds strength to the belief that the factors of time and military necessity were not as urgent as they have been represented to be.

Moreover, there was no adequate proof that the Federal Bureau of Investigation and the military and naval intelligence services did not have the espionage and sabotage situation well in hand during this long period. Nor is there any denial of the fact that not one person of Japanese ancestry was accused or convicted of espionage or sabotage after Pearl Harbor while they were still free,15 a fact which is some evidence of the loyalty of the vast majority of these individuals and of the effectiveness of the established methods of combatting these evils. It *242seems incredible that under these circumstances it would have been impossible to hold loyalty hearings for the mere 112,000 persons involved — or at least for the 70,000 American citizens — especially when a large part of this number represented children and elderly men and women.16 Any inconvenience that may have accompanied an attempt to conform to procedural due process cannot be said to justify violations of constitutional rights of individuals.

I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the Constitution.

Mr. Justice Jackson,

dissenting.

Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity and a citizen of California by *243residence. No claim is made that he is not loyal to this country. There is no suggestion that apart from the matter involved here he is not law-abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the. place where he was born, and where all his life he has lived.

Even more unusual is the series of military orders which made this conduct a crime. They forbid such a one to remain, and they also forbid him to leave. They were so drawn that the only way Korematsu could avoid violation was to give himself up to the military authority. This meant submission to custody, examination, and transportation out of the territory, to be followed by indeterminate confinement in detention camps.

A citizen’s presence in the locality, however, was made a crime only if his parents were of Japanese birth. Had Korematsu been one of four — the others being, say, a German alien enemy, an Italian alien enemy, and a citizen of American-born ancestors, convicted of treason but out on parole — only Korematsu’s presence would have violated the order. The difference between their innocence and his crime would result, not from anything he did, said, or thought, different than they, but only in that he was born of different racial stock.

Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one’s antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him, for it provides that “no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.” But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign. If Congress in peace-time legislation should *244enact such a criminal law, I should suppose this Court would refuse to enforce it.

But the “law” which this prisoner is convicted of disregarding is not found in an act of Congress, but in a military order. Neither the Act of Congress nor the Executive Order of the President, nor both together, would afford a basis for this conviction. It rests on the orders of General DeWitt. And it is said that if the military commander had reasonable military grounds for promulgating the orders, they are constitutional and become law, and the Court is required to enforce them. There are several reasons why I cannot subscribe to this doctrine.

It would be impracticable and dangerous idealism to expect or insist that each specific military command in an area of probable operations will conform to conventional tests of constitutionality. When an area is so beset that it must be put under military control at all, the paramount consideration is that its measures be successful, rather than legal. The armed services must protect a society, not merely its Constitution. The very essence of the military job is to marshal physical force, to remove every obstacle to its effectiveness, to give it every strategic advantage. Defense measures will not, and often should not, be held within the limits that bind civil authority in peace. No court can require such a commander in such circumstances to act as a reasonable man; he may be unreasonably cautious and exacting. Perhaps he should be. But a commander in temporarily focusing the life of a community on defense is carrying out a military program; he is not making law in the sense the courts know the term. He issues orders, and they may have a certain authority as military commands, although they may be very bad as constitutional law.

But if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient. That is *245what the Court appears to be doing, whether consciously or not. I cannot say, from any evidence before me, that the orders of General DeWitt were not reasonably expedient military precautions, nor could I say that they were. But even if they were permissible military procedures, I deny that it follows that they are constitutional. If, as the Court holds, it does follow, then we may as well say that any military order will be constitutional and have done with it.

The limitation under which courts always will labor in examining the necessity for a military order are illustrated by this case. How does the Court know that these orders have a reasonable basis in necessity? No evidence whatever on that subject has been taken by this or any other court. There is sharp controversy as to the credibility of the DeWitt report. So the Court, having no real evidence before it, has no choice but to accept General DeWitt’s own unsworn, self-serving statement, untested by any cross-examination, that what he did was reasonable. And thus it will always be when courts try to look into the reasonableness of a military order.

In the very nature of things, military decisions are not susceptible of intelligent judicial appraisal. They do not pretend to rest on evidence, but are made on information that often would not be admissible and on assumptions that could not be proved. Information in support of an order could not be disclosed to courts without danger that it would reach the enemy. Neither can courts act on communications made in confidence. Hence courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint.

Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more *246subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as “the tendency of a principle to expand itself to the limit of its logic.” 1 A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court’s opinion in this case.

It argues that we are bound to uphold the conviction of Korematsu because we upheld one in Hirabayashi v. United States, 320 U. S. 81, when we sustained these orders in so far as they applied a curfew requirement to a citizen of Japanese ancestry. I think we should learn something from that experience.

In that case we were urged to consider only the curfew feature, that being all that technically was involved, because it was the only count necessary to sustain Hirabayashi’s conviction and sentence. We yielded, and the Chief Justice guarded the opinion as carefully as language *247will do. He said: “Our investigation here does not go beyond the inquiry whether, in the light of all the relevant circumstances preceding and attending their promulgation, the challenged orders and statute afforded a reasonable basis for the action taken in imposing the curfew.” 320 U. S. at 101. “We decide only the issue as we have defined it — we decide only that the curfew order as applied, and at the time it was applied, was within the boundaries of the war power.” 320 U. S. at 102. And again: “It is unnecessary to consider whether or to what extent such findings would support orders differing from the curfew order.” 320 U. S. at 105. (Italics supplied.) However, in spite of our limiting words we did validate a discrimination on the basis of ancestry for mild and temporary deprivation of liberty. Now the principle of racial discrimination is pushed from support of mild measures to very harsh ones, and from temporary deprivations to indeterminate ones. And the precedent which it is said requires us to do so is Hirabayashi. The Court is now saying that in Hirabayashi we did decide the very things we there said we were not deciding. Because we said that these citizens could be made to stay in their homes during the hours of dark, it is said we must require them to leave home entirely; and if that, we are told they may also be taken into custody for deportation; and if that, it is argued they may also be held for some undetermined time in detention camps. How far the principle of this case would be extended before plausible reasons would play out, I do not know.

I should hold that a civil court cannot be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority. The courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts and become instruments of military policy.

*248Of course the existence of a military power resting on force, so vagrant, so centralized, so necessarily heedless of the individual, is an inherent threat to liberty. But I would not lead people to rely on this Court for a review that seems to me wholly delusive. The military reasonableness of these orders can only be determined by military superiors. If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history.

My duties as a justice as I see them do not require me to make a military judgment as to whether General DeWitt’s evacuation and detention program was a reasonable military necessity. I do not suggest that the courts should have attempted to interfere with the Army in carrying out its task. But I do not think they may be asked to execute a military expedient that has no place in law under the Constitution. I would reverse the judgment and discharge the prisoner.

KENNEDY, District Judge.

The above causes are brought by indictments for violation of the Selective Training and Service Act of 1940, 50 U.S.C.A. Appendix, § 311. The defendants were severally arrested and arraigned before the Court upon such indictments to which all individually pleaded not guilty. The defendants were at said arraignment and at all other times in the trial of said cause represented by counsel selected by themselves. It was stipulated that the cases should be consolidated for the purpose of trial and that a jury would be waived and the cases tried to the Court without intervention of a jury, to which stipulation each individual defendant in open Court assented. The cases were thereupon set for trial on June 12, at which time the trials were commenced, and were concluded on June 19, 1944.

The proofs of the Government in support of the charges laid in the indictments show that the defendants were registrants at various local Selective Service Boards in the State of California and other western States; that they were all male citizens of the United States and within the draft age; that they were variously classified by their respective Boards in 1-A or sometimes subsequently in 4 — C; that eventually they were all re-classified in 1-A and thereafter ordered to report for pre-induction physical examination. Inasmuch as defendants had *929been placed in a Relocation Center at Heart Mountain, Wyoming, the personal files and orders were sent to the Selective Service Board at Powell, Wyoming, for the purpose of carrying the orders of the local boards into effect as permitted by the Act and Regulations thereunder. Under an order of the Powell Board they were all directed to appear at specified times for preinduction physical examination which order the defendants failed to obey. In several of the cases the defendants, after having been classified in 1-A, were directed to appear for induction at various places in the vicinity of their former places of residence but in all instances the time specified by the order for appearance for pre-induction physical examination was prior to the time that the orders of the respective Boards required them to appear for induction. Traveling facilities were afforded by the Government to transport said defendants from the relocation center to the location of the Board specified under the terms of the pre-induction order. Upon their failure to report for pre-induction physical examination, their names were individually reported to the United States Attorney for the District of Wyoming and their cases were presented to a grand jury resulting in the indictments upon which this prosecution is based. The defendants, upon their arrest, as is the usual custom, were fingerprinted by the United States Marshal and statements taken in connection with said fingerprinting process to which each defendant signed his name without objection. Each of the defendants was, in advance of the trial, interviewed by special agents of the Federal Bureau of Investigation and all were given the customary warning that they were being interviewed by an agent of the government, whose identity was established; that they were not required to make any statement and if they did make a statement it might be used in Court against them; that no promises or threats were made by said agents; that they were all entitled to counsel if they demanded it; and that each defendant, with one exception, freely and voluntarily made a statement to such official, some of which were taken down in writing, read over and signed by the defendant, and others made oral statements, proof of which was adduced upon the stand. There appeared to be no evidence of mistreatment either mental or physical and no coercion used in procuring such statements. There is no testimony in the record to the contrary. It appears from these statements, with the one exception heretofore mentioned, that the defendants each received his order to appear for pre-induction physical examination and that he purposely and wilfully refused to obey said order. In each instance the reason given for failure to obey said order was in the nature of a complaint that he had not been accorded his rights as an American citizen in being removed by the Military establishment from his place of former residence into a Relocation Center, that he had been previously classified as 4-C which is a class under the regulations used for enemy aliens, and that each defendant had determined on his own responsibility not to appear in response to the order for pre-induction physical examination until his rights of citizenship had been clarified. The isolated instance was in Case No. 4952 — Kimura, who refused to give an interview to an agent of the Government. However, in his case it was proved that when he was arrested he had a copy of the order for him to appear upon his person. It appears from the testimony that the defendants, with many others of Japanese ancestry, were removed by the Military establishment of the Government to various relocation centers and away from the danger zones presumed to be existing along the west coast where the fear of invasion by the Japanese Government with which the United States was at war centered, and that Heart Mountain in Wyoming was one of these Relocation Centers. Here the defendants and others of their class were housed and fed in a satisfactory manner and were permitted to live in families and enjoy the ordinary family relations. A portion of the Center was surrounded by barbed wire fences and various entrances and exits were provided at which guards were stationed. No one was permitted to enter or leave the Center, whether of Japanese ancestry or otherwise, without receiving a permit from the Director. These permits were issued indiscriminately to the occupants of such Center where the reason given was a legitimate one. They were given permits upon application to seek employment outside, either permanent or temporary, and were permitted upon request to go to neighboring towns if they desired. None of the defendants in this case appears to have been refused permission to seek employment elsewhere and the permits seem to have been used as a method *930of keeping track of the occupants of the Center after they had been permitted to leave. Only one instance (not a defendant here) was given of an occupant of the Center of Japanese descent leaving without a permit and he was subsequently sent to Tule Lake, California. No evidence was offered by the defendants except by recalling the Assistant Director of the Relocation Center at Heart Mountain for the purpose of amplifying the method of conducting the Center in connection with the privileges extended to the occupants.

For the defense it is mildly suggested that there was no identification of each individual defendant on trial and because of the fact that the sixty-three defendants were all before the Court at the same time for trial and bearing some resemblance on account of their Japanese ancestry they could not be picked out by any Government official as being a defendant responding to the name under which he was indicted. It is true that there were several identifications of individual defendants by facial appearance but not of all. However, the answer to this suggestion is that the defendants were identified by fingerprints to which they willingly attached their signatures at or about the time of arrest. The defendants likewise identified themselves to the Government agents by responding to their najnes when called for the purpose of interview. They likewise identified themselves by responding to the call of the Court of their names upon the docket both at the time of arraignment and at the commencement of the trial. Finally, they now assert through the mouth of their counsel that their reasons given for failure to obey the order for pre-induction physical examination was a valid and legal excuse. Counsel argue that because of the fact that some of the defendants were ordered for induction before their respective Boards at a time while they were occupants of the Relocation Center and subsequently placed under arrest and therefore could not physically obey the order for induction that they were thereby absolved from obeying the order for pre-induction physical examination.

It appears that at one time persons eligible under the draft were called for induction and thereafter examined as to physical ability. Later regulations were established by which persons under proper classification would be called for pre-induction physical examination thereby saving time and effort in the matter of induction as those who did not pass a satisfactory physical examination would not be ordered to appear for induction and could be re-classified accordingly. This regulation and its interpretation led to some discussion as to its meaning, but if it is material at all I think the true import of it is for the purpose above stated and should be regarded in no sense as affecting the rights of the defendants here. The subsequent order for induction which they perhaps may not have been able to obey, in no way discharged them from the liability to obey a previous order which it was possible for them to obey. That a subsequent order of the Selective Service Board or any relaxation of the same does not vitiate a previous disobeyed order is definitely ruled in Marshall v. United States, 5 Cir., 140 F.2d 261; and United States v. Roth, D.C., 53 F.Supp. 465.

The defendants assert that inasmuch as they are American citizens by birth that they have been discriminated against by various acts of the Government, in classifying them in 4-C which includes enemy aliens, and removing them from their places of residence to Relocation Centers, their loyalty to the United States Government has thereby been questioned without reason and that they should not be reclassified for service in the war at least until such time as “their status of citizenship has been clarified’’ — to use the expression contained in letters to their various Draft Boards and to the Government Officials. The Government regulations permit the classification of citizens of Japanese ancestry into 4 -C which includes enemy aliens, at least this is the contemplation of the regulation, until their status as to being loyal citizens has been ascertained by investigation. If .the Selective Service Act and the regulations thereunder permit, under the war emergency, the treatment of this class of citizens in regard to restrictions upon their personal habits in their respective communities and likewise removal to Relocation Centers, it would seem that the matter of classification for the time being in 4-C would be of relatively less importance than such other regulations mentioned. That the regulations promulgated by Congress and the President in establishing as a military necessity the Western Defense Command of Military Areas and Zones is legal has been definitely determined in Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774. There the matter litigated *931was the constitutionality of the establishment of a “curfew law” in which all Japanese-American citizens were required to report and be restricted to their places of residence during certain hours of the day. The Supreme Court in its decision of the matter bases its conclusion upon the exigencies of war existing between the United States and the Japanese Nation, calling attention to the “sneak” attack upon Pearl Harbor, with an observation that the Japanese Diplomatic Representatives were at the same time conducting negotiations with the State Department for the purpose of settling differences between the two countries. Attention is also given in the opinion to the fact that the Japanese Government recognizes a dual citizenship and maintains that children of Japanese Nationals are citizens of the Japanese Empire whatever may be their place of birth even among persons of Japanese ancestry born in this country and therefore are citizens of Japan; that there might be logic in the conclusions that in a case of war these would hold their attachment to Japan; and that in a critical hour these could not be effectively segregated so as to relieve a menace to the National defense and safety. That Court concludes that in time of war the Nation must use measures to protect its National defense and that the Government may hit at a particular danger where it is seen. While this case does not pass upon the legality of the removal and relocation of persons under the class here before the Court, the opinion calls attention to the establishment by Executive Order of the War Relocation Authority and the right thereby afforded to effectuate a program for removal, relocation, maintenance and supervision of the persons under consideration. Our attention has not been called to any case in which the Courts have construed the constitutionality of the removal and relocation of citizens of Japanese extraction, yet it would seem that the same logic which led to the conclusion that the curfew law did not violate their constitutional rights would justify a like conclusion in regard to removal and relocation.

It is contended that there is no evidence of criminal intent upon the part of the defendants. The proof discloses, however, that they wilfully and intentionally neglected and refused to obey the order of the Board to report for pre-induction physical examination. This is a sufficient showing of intent to violate the law unless the reasons given for the failure could be determined sufficient in law to justify their actions. It has been seen that the discrimination exercised by the Government on account of their Japanese ancestry was legitimate, justified and legal as being within the power of Congress and the President in the war emergency. Kiyoshi Hirabayashi v. United States, supra. As to the assertion that they did not desire to report until their citizenship had been clarified, this is without merit as to legal basis. The Courts have repeatedly asserted that the orders of the Boards of Selective Service have the substance of Congressional Acts and must be obeyed. It is evident that what they asserted in the matter of the clarification of their citizenship was in fact accomplished by the effect of the order which they disobeyed. After they had been segregated an investigation was undoubtedly made by the Intelligence Branch of the Military Service and in substantial numbers they were cleared of any suspicion of disloyalty and thereafter classified for military service the same as had been all other eligible classes of American citizens. No fuller exemplification of a clarification of their citizenship could be evinced than that they were recognized through the certificates of acceptability as being such a class of citizens as under regular conditions should be placed in the service of their country. Certainly it cannot be effectively contended that if they had been found disloyal to this country and still bore allegiance to the country of their ancestors they would be thought to be desirable soldiers in the branches of the service fighting for our National existence. When, therefore, they were placed in 1-A and ordered to report for pre-induction physical examination, their pure American citizenship was established beyond question.

It is the logic of the decision, in Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, that the Congress has committed to the Selective Service System the manner in which the raising of defense forces shall be brought about and the Judicial branch of the Government is not given an opportunity for intervention before the final acceptance of an individual for national service. We think the principle there expressed applies here and that this Court has no duty to perform by intervening in the process of maintaining the war service until such time at least as a person called has complied with the order of the desig*932nated authority. Due respect by each of our three branches of Federal Government should be paid one to the other in observing strictly the legal functions of each.

Personally this Court feels that the defendants have made a serious mistake in arriving at their conclusions which brought about these criminal prosecutions. If they are truly loyal American citizens they should, at least when they have become recognized as such, embrace the opportunity to discharge the duties of citizens by offering themselves in the cause of our National defense.

From what has been said it is apparent that the finding and verdict of the Court, under the authority delegated to it through the stipulation, must find the defendants and each of them guilty as charged in the indictments. Exceptions are reserved in their behalf.

HUXMAN, Circuit Judge.

Shigeru Fujii, the appellant herein, was indicted, tried, and convicted tinder 50 U.S. C.A. Appendix § 311, for wilfully refusing and failing to report for induction into the armed forces of the United States pursuant to an order of his local draft board. He is one of 63 persons convicted under similar circumstances. By stipulation of counsel, it is agreed that the other cases shall be controlled by the decision in this case.

Appellant is an American citizen. He was born in the United States of Japanese ancestry. He registered with his local draft board in California. Thereafter, in 1942, he was removed to and confined in a relocation center at Heart Mountain Park, Wyoming. At first he was classified in IV-C. Prior to the order to report, he was reclassified into 1-A. He was still confined in the relocation center when he was ordered to report for induction.

Appellant was loyal to the United States at all times. There can be no question about this. The agent for the Federal Bureau of Investigation who investigated him after he failed to report testified that his attitude was that of being loyal to the United States; that he indicated no desire to live in Japan, and that he desired to fight for this country if he were restored to his rights as a citizen.

Appellant’s entire appeal is predicated on the argument that his removal from his home and his confinement behind barbed wire in the relocation center without being charged' with any crime deprived him of his liberty and property without due process of law, and that therefore he ought not to be required to render military service until his rights were restored.

Under the admitted facts as to his loyalty, he was restrained of his liberty by confinement in the relocation center.1 ile could have secured his complete release from restraint by writ of habeas corpus at any time and could thus have been restored to freedom. This would have given him the vindication which he seeks. It would have cleared his name for all time. But this he did not do. Instead, he chose to disobey a lawful order because he claimed his rights had been invaded. Two wrongs never make a right. One may not refuse to heed a lawful call of his government merely because in another way it may have injured him. Appellant was a citizen of the United States. Tie owed the same military service to his country that any other citizen did. Neither the fact that he was of Japanese ancestry nor the fact that his constitutional rights may have been invaded by sending him to a relocation center cancel this debt.

Furthermore, the courts are not open to him to challenge his right to exemption from military service under the admitted facts. , It is now well settled that one must exhaust his administrative remedies and must obey the order to report before he may use the courts to challenge his classification. This was definitely settled by the Supreme Court in Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305. Appellant concedes this, but argues that the decision in the Falbo case is wrong. In effect, he asks us to overrule the Supreme Court. No reason, to say nothing of. a cogent one, is given for this extraordinary request. Appellant also urges that this case is controlled by the decision in United States v. Kuwabara, D.C., 56 F.Supp. 716. We do not pass upon the soundness of that decision. It is sufficient to say that it is distinguishable upon the facts.

The Selective Service Act makes it a penal offense to refuse to report for induction. It was appellant’s duty to report for induction and thereafter assert any claimed *300rights for exemption from military service by writ of habeas corpus. This he failed to do. Instead, he chose to ignore the order. As a result, he became subject to the penal provisions of the statute.

Under the stipulation of the parties, this -decision is made applicable to the other -.sixty-two cases covered therein.

Affirmed.

BRATTON, Circuit Judge.

Section 11 of the Selective Service Act of 1940, 54 Stat. 885, 50 U.S.C.A.Appendix § 311, imposes a criminal sanction on any person who knowingly makes or is a party to the making of any false registration, who knowingly makes or is a party to the making of any false statement as to his or another’s fitness or liability for service, who knowingly counsels, aids, or abets another to evade registration or service, who knowingly fails or neglects to perform any duty required of him by the Act, who knowingly hinders or interferes by force or violence with the administration of the Act, or who conspires so to do.

By indictment returned in the United Stales Court for Wyoming, Kiyoshi Oka-molo, Pa til Takeo Nakadate, Tsutomu Wa-*906kaye, Frank Seishi Emi, Minoru Tamesa, Isamu Horino, Guntaro Kubota, and James Matsumoto Omura were charged with entering into a conspiracy with each other and with divers other persons to evade the requirements of the Act, and to counsel and abet themselves and others who had registered under the Act and who were not yet inducted into the land or naval forces of the United States to evade service in such forces. The defendant James Mat-sumoto Omura was acquitted. The other defendants were found guilty, four were sentenced to terms of imprisonment of four years each, and three to terms of two years each.

The sufficiency of the evidence to sustain the convictions is challenged. Following the attack on our naval base at Pearl Harbor and our declaration of war against Japan, many Japanese aliens and American citizens of Japanese descent'were evacuated from their homes in the Pacific coastal area and placed in war relocation centers. The appellant Kubota was born in Japan and the other appellants were American born citizens of Japanese ancestry. They were evacuated from their homes in the Pacific Coastal region and placed in a relocation center at Heart Mountain, Wyoming. An organization called the Fair Play Committee, hereinafter referred to as the Committee, was formed at the relocation center. Its membership was limited to citizens of the United States, and apparently its original purpose was to air grievances, improve the lot of the evacuees, and test the constitutionality of the evacuation. All the appellants except Kubota were members of the Committee, and most of them were officers of it. Sometime after the inception of the Committee, the appellants and others of like status were reclassified under the Selective Service Act and made eligible for service in the armed forces. The Committee thereupon inaugurated an active program relating to that matter, and each of the appellants took an active part in it. Funds were raised, meetings were held, addresses were delivered, letters were written, bulletins were published and circulated, and publicity was prepared for publication and was published in the Rocky Shimpo, a newspaper published by the defendant Omura in Denver, Colo. Much said in the address, bulletins, and publications was to the effect that because of the uncertainty of their status, those at the relocation center who had been thus reclassified were not subject to the provisions of the Selective Service Act; that their evacuation and detention constituted a wrongful violation of law; that clarification of their status was desired before being inducted into the armed forces; and that they were willing to enter the armed service as soon as the wrong done them was corrected and they were restored to their rights as citizens. A test case in court to determine their status and vindicate their rights was discussed, and correction by Congressional pronouncement was mentioned. But the activities of the members of the Committee did not end there. At a largely attended meeting, it was decided by unanimous vote that until their status had been clarified and their rights restored, they would refuse to submit to physical examination or report for induction when called for service. And the action thus taken was given publicity by a bulletin circulated at the center in which it was stated, “We, Members of the Fair Play Committee Hereby Refuse to Go to the Physical Examination or to the Induction If or When We are Called in Order to Contest the Issue * * * We hope that all persons whose ideals and interests are with us do all they can to help us. We may have to engage in court actions, but as such 'actions require large sums of money, we do need financial support and when the time comes, we hope that you will back us up to the limit.” Thereafter more than sixty persons detained at the relocation center, including some of the appellants, disobeyed orders of the draft board to report for preinduction physical examination or orders to report for induction into the armed forces. One of the appellants stated in a letter, “The other Centers are ahead of us in the movement against the draft * * *. ” Another appellant stated on one occasion that he did not know’ whether the United States should resist the Japanese government in the war effort; that he professed loyalty to the United States but could not believe whether it was doing right or wrong; and that he had not come to a conclusion yet as to whether he believed in the cause of the United States in the war with Japan. A third appellant stated on one occasion that he was not willing to go into the army. And a fourth appellant stated that he would rather go to the penitentiary than report when called by his draft board. Manifestly the evidence, together with the permissible infer-

*907 The further contention is that the convictions denied to appellants their rights of freedom of speech, press, and assemblage, guaranteed by the First Amendment. The Act, supra, was enacted into law at a time when most of the world was at war. Realizing the danger of our becoming involved in the war, Congress recognized the urgent necessity of integrating our forces for national defense, and the Act was passed for the purpose of mobilizing our national manpower. By its terms a comprehensive system was established intended to operate as a process for the selection of men for service in our armed forces. And in furtherance of that legislative purpose, section 11 was inserted making it a penal offense to violate certain provisions in the Act, or to conspire together for that purpose. Freedom of speech, freedom of the press, and freedom of assembly guaranteed by the First Amendment are fundamental rights. But, though fundamental, they are not in their nature absolute. These rights are not unbridled license to speak, publish, or assemble without any responsibility whatever. Their exercise is subject to reasonable restriction required in order to protect the Government from destruction or serious injury. The delicate and difficult question usually presented is whether speech, press and assembly are of such nature as would produce, or are calculated to produce, a clear, present, and imminent danger of a substantive evil which Congress has the constitutional power to prevent. Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470; Hartzel v. United States, 322 U.S. 680, 64 S.Ct. 1233, 88 L.Ed. 1534. Ordinarily “the substantive evil must be exlremely serious and the degree of imminence extremely high” in order to warrant punishment for the exercise of speech, press, or assembly. Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192; Thomas v. Collins, 323 U.S. 516, 65 S.Ct. enees fairly to be drawn from it, presented an issue of fact for the jury as to whether the statements, acts and conduct of the appellants, considered in their totality, were honest objections directed in good faith against that which was believed to be wrongs, or constituted convincing evidence of a concert of understanding and purpose to' evade the Selective Service Act themselves and to aid and abet others in doing so. It cannot be said that the evidence was insufficient to support the verdict and judgments. 315. But the First Amendment in its full sweep does not protect one in speech, publication, or assembly in furtherance of a conspiracy to promote evasion of an act reasonably designed to protect the Government against destruction by military force. Cf. Schenck v. United States, supra.

The remaining contention which merits discussion concerns itself with the denial of a requested instruction and the giving of an instruction. The appellants tendered to the court a requested instruction, the substance of which was that in determining whether the appellants acted in good faith or bad faith, the jury might take into consideration their sincerity or insincerity of belief that the status and rights of American citizens of Japanese descent, evacuated from their homes and detained in the relocation center, could be lawfully determined or clarified by the courts upon refusal of such persons to comply with the orders of the draft board and upon criminal prosecution for such refusal; and that if the jury should find that the appellants sincerely and in good faith entertained such belief, and that all of their pertinent acts and conduct were based upon such belief a verdict of acquittal should be returned. The court refused the tendered instruction and instructed the jury in this language: “They took the positipn that a test case should be filed, having for its purpose a test of the constitutionality of the selective training and service act as applied to them while detained in a relocation center. In this connection you are instructed that a desire to have a test case for that purpose does not excuse failure to comply with the selective training and service act. * * * The selective training and service act provides that it is a violation of the law for anyone to counsel another to disobey the draft law or to assist or abet one to evade the draft law. And I charge you that it is a violation of the law, even though it is contended that the purpose was to create a case for the testing of the constitutionality of the law.”

The indictment in Keegan v. United States, 325 U.S. 478, 65 S.Ct. 1203, 1207, charged a conspiracy to counsel divers persons to evade, resist, and refuse service in the land and naval forces, in violation of section 11, supra. The defendants there were members of an organization called the Bund. Its professed purpose was to keep alive the German spirit among persons of German blood in the United States. Par*908ticular objection was directed against section 8(i) of the Selective Service Act, supra, SO U.S.C.A.Appendix § 308(i) which declared it to be the expressed policy of the Congress that vacancies in the employment rolls of business or industry caused by the induction of employees into the armed forces under the provisions of the Act should not be'filled by members of the Bund. The evidence disclosed among other things that by a document called Bund Command No. 37, it was stated in effect that every man, if he could, would refuse to do military duty until that section of the act and all other laws which confined the rights of members of the organization were revoked. Broadly stated, the facts there were fairly comparable to those presented here. It was contended by the Government there that the honesty and bona fides of the defendants was immaterial, and further that whether they desired to test the constitutionality of the law was likewise of no decisive moment. But the court did not share that view. The court said, “But to counsel merely refusal is not made criminal by the Act.” And the court further said, “One with innocent motives, who honestly believes a law is unconstitutional and, therefore, not obligatory, may well counsel that • the law shall not be obeyed; that its command shall be resisted until a court shall have held it valid, but this is not knowingly counseling, stealthily and by guile, to evade its command.” Viewed in the light of the opinion in the Keegan case, it is clear that the trial court erred in giving the instruction to which reference has been made. In respect of the issue as to whether the appellants acted with honesty of purpose and innocence of motive in a good faith effort to bring about a test case to determine their exempt status under the Selective Service Act, the court should have instructed the jury in substantial harmony with the rule later enunciated in the Keegan case.

The United States seeks to avoid the impact of the Keegan case in its controlling application here by urging that there the judgment was reversed solely on the ground that the evidence was insufficient. It is said that there only five members of the court joined in the reversal; that four members dissented; that two of the members who joined in the reversal did so exclusively on the ground of the inadequacy of the evidence; and that therefore only three members concurred in that part of the opinion of the majority relating to the right of one to counsel in good faith and with innocent motives noncompliance with a law honestly believed to be unconstitutional and for that reason not obligatory. But a critical examination of the crucial language in the opinion of the majority and in the separate concurring opinions indicates that they fail to sustain the contention.

The judgments are severally reversed and the causes remanded.

HUXMAN, Circuit Judge

(dissenting in part).

I concur in the conclusion of the majority that the trial court erred in its instruction on the issue of good faith, but I cannot agree with the majority that the evidence was sufficient to support the verdict and judgments. In my opinion the evidence was wholly insufficient to establish a conspiracy to evade the Act, or aid or abet others to do so, as the term “evade” is construed by the Supreme Court in Keegan v. United States, supra. No useful purpose would be served by analyzing in detail the evidence which leads me to this conclusion.

I would reverse and remand, with directions to dismiss.

POPE, Circuit Judge.

Appellant was convicted of treason against the United States. The indictment charged that she adhered to the enemies *348of the United States giving them aid and comfort by working as a radio speaker, announcer, script writer and broadcaster for the Imperial Japanese Government and the Broadcasting Corporation of Japan, between November 1, 1943, and August 13, 1945; that such activities were in connection with the broadcasting of programs specially beamed and directed to the American Armed Forces in the Pacific Ocean area; and, that appellant’s activities were intended to destroy the confidence of the members of the Armed Forces of the United States and their allies in the war effort, to undermine and lower American and Allied military morale, to create nostalgia in their minds, to create war weariness among the members of such armed forces, to discourage them, and to impair the capacity of the United States to wage war against its enemies. The indictment alleged the commission of eight overt acts. Appellant was found guilty of the commission of overt act No. 6 only, which in the language of the indictment, was: “That on a day during October, 1944, the exact date being to the Grand Jurors unknown, said defendant, at Tokyo, Japan, in a broadcasting studio of the Broadcasting Corporation of Japan, did speak into a microphone concerning the loss of ships.”

- Upon this appeal counsel for appellant have filed briefs asserting the commission of numerous errors on the part of the trial court. Their briefs, however, have overlooked this Court’s Rule 20d relating to the requirement of a specification of errors and the manner in which the same shall be stated. The failure to comply with this rule has added materially to the task of the court in attempting to evolve from very lengthy briefs the precise contentions made by the appellant, and we take this occasion tó call the attention of the members of the Bar of this Court to the fact that the rule is designed to clarify counsel’s presentation of an appeal as well as to lighten the labors of the court.

Appellant’s contentions fall into two categories: the first, it is asserted, call for a judgment that the defendant-appellant must be discharged; the second relate to alleged errors which would require a new trial.

1. Whether the applicable clause of the Act relating to treason was unconstitutional as applied to appellant.

At the outset appellant contends that those provisions of the treason statute, 18 U.S.C.A. § 1, 1946 Ed.1 under which she was convicted were void and wanting in due process under the Fifth Amendment by reason of the co-existence of those provisions of the Nationality Act of 1940, 8 U.S. C.A. § 501 et seq,,. which repealed the former expressed prohibition against expatriation in time of war. In consequence of this, says appellant, the law provided that a person in like position as appellant, might lawfully have been naturalized to an enemy belligerent, and that under the Government’s naturalization policy the appellant could, as many other persons of Japanese ancestry did, have transferred allegiance to Japan. Appellant says that a person desiring to adhere to the enemy and give it aid and comfort, and wishing 'to do a thorough-going job of it, could shed his allegiance to the United States under existing law and thus engage in adherence, aid and comfort to the enemy with impunity. On the other hand, says appellant, she is charged with treason for having done no differently than the person who transferred allegiance. It is said that this constitutes an unreasonable and arbitrary discrimination; that it operates as a denial of equal protection of the law to such a degree as to be a denial of due process under the Fifth Amendment.

Putting the argument in a slightly different form, appellant says that in permitting wartime naturalization to an enemy belligerent, the United States authorized adherence, aid and comfort to the enemy under certain circumstances. It is said that by permitting adherence to Japan after naturalization, the Japanese naturalization order is treated as the equivalent of a license.

In other words, it is said one person adheres to the enemy giving it aid and comfort without any consequences under the *349treason act because he has a Japanese naturalization order which is in effect a license to adhere to the enemy. Another person, without such an order, is therefore engaged in no more than an unlicensed adherence to the enemy. It is said that punishment of treason cannot be limited merely to unlicensed adherence, aid and comfort because Article III, Section 3, of the Constitution, defining treason provides that it “shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” This clause, it is said, means that treason shall consist only of adherence, aid and comfort, as such. Limiting punishment for treason to unlicensed adherence, aid and comfort, means adding limitations and qualifications not contemplated by the Constitutional definition of treason.

We are unable to perceive any sound basis for such an argument. The reference to licensed and unlicensed adherence to the enemy is, we think, but a play on words. The classification here, of which appellant complains, is none other than the ancient distinction drawn between those who do and those who do not owe allegiance.2

Whether the provisions of the Nationality Act which appellant thinks work unfairly represent a wise or sound legislative policy is a problem for Congress, not for us. We are unable to observe anything unreasonable or arbitrary about preserving the ancient distinction between those who do and those who do not owe allegiance regardless of whether the transfer of allegiance could be made in wartime or not. Reasons both historical and logical exist for the distinction and we find no want of due process here.

2. The question of a speedy trial.

Appellant asserts that she was denied the speedy trial required by the Sixth Amendment and that such denial requires her discharge. Her argument in this respect is predicated upon the circumstance that after the defeat of Japan the occupying military force caused appellant’s arrest and internment for the period of approximately one year from October 17, 1945, until October 25, 1946. This arrest was pursuant to an order of the Commander-in-Chief of the Armed Forces of the Pacific authorizing the Commanding Generals of the occupying forces to apprehend and detain citizens and nationals of the United States who were suspected of treason and persons who might constitute a threat to the security of the military forces occupying Japan.

On May 7, 1946, a military order was made to the effect that the appellant was not considered subject to a military trial, but that she was being held until the results of the military investigations were transmitted to the Department of Justice. Immediately prior to her release on October 25, 1946, the War Department advised the Army authorities in Japan that the “Department of Justice no longer desires Iva D’Aquino be retained in custody” and her release followed. Thereafter, on August 26, 1948, the appellant was arrested at Tokyo pursuant to a warrant of arrest issued under the authority of the Supreme Command for the Allied Power. It was issued upon the complaint of the Department of Justice. She was brought to the United States under guard of military police acting under orders from General Headquarters Far East Command who took her on board a United States Army Transport which arrived in San Francisco on September 25, 1948, when she was- delivered to special police of the Federal Bureau of Investigation. She was arraigned on the same day in San Francisco and indicted on October 8, following.

There is nothing in the record to disclose failure on the part of the United States to prosecute the charge against appellant with reasonable promptness following the date of her arrest on August 26, 1948. The record is barren of any demand for a speedy trial. Danziger v. United States, 9 Cir., 161 F.2d 299, 301, certiorari *350denied 332 U.S. 769, 68 S.Ct. 81, 92 L.Ed. 354. Appellant obtained an order permitting one of her attorneys to go to Japan for the purpose of taking depositions at Government expense and she obtained a continuance of the trial date to permit the completion of that task. Under these circumstances there cannot be said to be a denial of a speedy trial. Daniels v. United States, 9 Cir., 17 F.2d 339, 344, certiorari denied Appell v. United States, 274 U.S. 744, 47 S.Ct. 591, 71 L.Ed. 1325.

Appellant however says that her military detention in Japan in the year following October, 1945, demonstrates that she was denied a speedy trial. We shall have occasion to refer to the character of the detention later in this opinion, but wholly apart from whether that detention was or was not in accordance with law, it has no bearing whatever upon the question of her right to a speedy trial, which is one that arises after a formal complaint is lodged against the defendant in a criminal case.

In this connection appellant makes an alternative contention based upon this prior imprisonment, — that such prior imprisonment constitutes former jeopardy. This contention obviously is without any basis whatever. McCarthy v. Zerbst, 10 Cir., 85 F.2d 640, certiorari denied 299 U.S. 610, 57 S.Ct. 313, 81 L.Ed. 450; Wainer v. United States, 7 Cir., 82 F.2d 305, affirmed 299 U.S. 292, 57 S.Ct. 79, 81 L.Ed. 58; Dixon v. United States, 8 Cir., 7 F.2d 818; United States v. Rossi, 9 Cir., 39 F.2d 432.

3. Loss of scripts and records.

Appellant asserts that this year’s imprisonment in Japan must be considered in conjunction with the fact that certain scripts, records, and copies of appellant’s broadcasts were destroyed or lost before the date of the trial, and that under -all these circumstances it is a denial of due process for the United States to prosecute her when such scripts and records were unavailable. Appellant contends that under the doctrine of Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, a deliberate suppression of the evidence on the part of the prosecution is a deni-al of due process. She contends that such is the situation here where the Government knowingly prosecuted a case upon incomplete evidence. She asserts that there is good reason to -believe that the missing evidence would be favorable to her and that the evidence became unavailable because of the Government’s own •acts since the Government originally had a complete set of the records and copies of the broadcasts compiled in its various monitoring stations.

We think there is no basis for this contention on the part of appellant. There is no showing that the missing scripts and records would have been favorable to the defense or that the Government suppressed any of such evidence.3 We find nothing in *351the record to warrant an assumption that the prosecutor did not produce all such scripts and records as were available. Further, there is nothing to negative the Government’s contention that the monitoring station records previously kept had been destroyed or lost in the process of the routine closing of such stations.

4. The “posse comitatus” Act.

The jurisdiction of the court below was based upon 18 U.S.C.A. § 3238 which provides: “The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district where the offender is found, or into which he is first brought.” Appellant asserts that the court below was without such jurisdiction in that she was brought from Japan to San Francisco in an illegal and unlawful manner by the military authorities in violation of the so-called “posse comitatus” Act, 20 Stat. 152, 10 U.S.C.A. § 15. This is the same argument that was made unsuccessfully in Chandler v. United States, 1 Cir., 171 F.2d 921, 936; and in Gillars v. United States, 87 U.S.App.D.C. 16, 182 F.2d 962, 972, 973. For the reasons stated in those cases, we hold this argument without merit.

5. Question of the sufficiency of the evidence.

Appellant argues that we should direct a judgment of acquittal on the ground that the evidence was insufficient to sustain a conviction. With respect to this, the record discloses that at the time of the commission of overt act No. 6, of which appellant was found guilty, she was unquestionably a citizen of the United States. She was born *352and educated in the United States and a few months prior to the outbreak of the war with Japan she had gone to Japan for the purpose of studying medicine. Previously she had received a college degree and had taken postgraduate work in a California university. Shortly before the outbreak of the war she applied for a passport to return to the United States and was advised by the State Department that the passport was denied on the ground that -her citizenship was not proven (she had traveled to Japan upon a “certificate of identification”). She endeavored to get clearance to board a ship scheduled to sail for the United States on December 2, 1941, but was unsuccessful. Early in 1942 she applied for evacuation through the Swiss Legation but encountering difficulties in procuring certification of her United States citizenship she abandoned this -attempt. Thereafter, and throughout her period of residence in Japan and while the war continued, she was frequently invited to become a Japanese citizen but steadfastly refused. In' the spring of 1945 she married D’Aquino, a Portuguese citizen. The marriage was subsequent to the date of the commission of the overt act No. 6.

After having been employed in various jobs in 1942 and in the early part of 1943, appellant sought employment at Radio Tokyo and began her work as a typist for the Broadcasting Corporation of Japan in the fail of 1943. Shortly thereafter she began her broadcast work for this corporation which was under the control of the Japanese Government. There is evidence in the record that when the appellant took her voice test and accepted employment -as an announcer and broadcaster for Radio Tokyo she knew that her work was to be concerned with a program known as “Zero Hour” which was to be beamed and directed .specially to Allied soldiers in the Pacific. She was told and understood that the program would consist of music and entertainment designed to procure a listening audience among Allied soldiers, and that there was to be interspersed news and commentaries containing propaganda which was to be used as -an instrument of psychological warfare. Their object was to cause the Allied troops to become homesick, tired and disgusted with the war.

Appellant participated in some 340 programs on the Zero Hour. She announced herself as “Ann” or “Orphan Ann”. From time to time she attended meetings of the participants in the Zero Hour program where the Japanese Army officers in command of the enterprise advised the persons present of the strategic importance of the program and urged continued efforts by the participants.

The overt act No. 6 was testified to' by the requisite number of witnesses who observed and listened to the broadcast in question. One of them was a participant in the same Zero Hour program. He told the appellant of a release from Japanese General Headquarters giving the American ship losses in one of the Leyte Gulf battles and requested appellant to allude to those losses. She proceeded, as this witness and another testified, to type a script about the loss of ships. That evening, when appellant was present in the studio, the news announcer broadcast that the Americans had lost many ships in the battle of Leyte Gulf. Thereupon appellant was introduced on the radio and proceeded to say in substance: “Now you fellows have lost all your ships. You really are orphans of the Pacific. Now how do you think you will ever get home ?”

It is true that the appellant’s version of her role as a broadcaster was substantially different from that which we have here summarized from the testimony of the Government witnesses. According to appellant’s version of the matter, the programs were exclusively entertainment and for that purpose only, she having been informed by the officer in command that the time for propaganda would not arrive until the Japanese were having more military and naval successes. Some of appellant’s witnesses testified that they were responsible for having her brought into the Zero Hour program. These persons were American prisoners of war who testified that they had been coerced into participation in this program. They testified that what they were up to was a sabotaging of the program insofar as it was designed to be propaganda to American soldiers, that they managed to *353inject in the program many reports of American prisoners of war and messages from them, and that the appellant cooperated with them in their efforts to frustrate the purposes of the Japanese military operating through the broadcasting corporation to destroy the morale of the American soldiers.4

Whether appellant’s version of her activities in broadcasting should be accepted rather than that disclosed by the Government witnesses was, of course, a question for the jury. Insofar as it is contended that the program was merely one to entertain the American troops, such a version of the evidence would, we have no doubt, tax the credulity of a jury who would be hard put to imagine the Japanese military spending time and money solely for that purpose.

Appellant’s counsel do not argue that we must accept her version of the testimony. They make the rather narrow point that other activities of the appellant, concerning which witnesses on both sides testified, were such as to require a conclusion that there existed reasonable doubt of appellant’s intention to adhere to the enemy and reasonable doubt of her treasonable intent.

These activities were certain acts of kindness and assistance which appellant rendered to Allied prisoners of war, some of whom were working with her on Radio Tokyo, and some of whom were imprisoned at Camp Bunka. The testimony was that she brought food, cigarettes, medicine, a blanket and short wave news of Allied successes to these prisoners, and that she did this frequently at substantial risk to herself.

We are unable to perceive the force of appellant’s argument in this respect. A general treasonable intent to betray the United States through the impairing of its war effort in the Pacific, might well accompany a particular feeling of compassion toward individual prisoners and sympathy for the plight in which they found themselves. It is were psychologically impossible for a person engaged in a treasonable enterprise simultaneously to furnish cigarettes and food to individual prisoners, appellant’s argument upon this point might have some weight. We think that the question of the effect of these acts of kindness upon appellant’s intent was one for the jury. Certainly, under the circumstances here, the court cannot declare that there must be a reasonable doubt in a reasonable mind and hence direct a verdict. The question of the existence of a reasonable doubt was for the jury. Cf. Craig v. United States, 9 Cir., 81 F.8d 816, 827, certiorari denied 298 U.S. 690, 56 S.Ct. 959, 80 L.Ed. 1408.

*3546. Admissibility of so-called “confessions”.

During the trial, a number of statements made to various persons by appellant were received in evidence and appellant contends that the court erred in admitting such statements for the reason that they were confessions and received as such contrary to the rules stated in Bram v. United States, 168 U.S. 532,18 S.Ct. 183, 42 L.Ed. 568, and in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, as restated in Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100. It is asserted that there was wanting sufficient proof that the statements were voluntary within the meaning of the rule in the Bram case; in some cases the statements were inadmissible because they were made at a time when appellant was being held under arrest and prior to arraignment upon the charge subsequently made against her; and further, that the statements made while she was held in custody were inadmissible under the .rule in the McNabb case because the Government is attempting to make use of the fruits of its own wrong.

One of the written statements thus given during appellant’s confinement or internment in Japan was the result of an interrogation by an agent of the Federal Bureau of Investigation on April 29 — 30, 1946, in the visitors’ room at Sugamo Prison where appellant was then confined. We have previously alluded to this period of imprisonment and it will be noted that on the dates mentioned she had been confined for a period of approximately six months. Appellant argues that under the McNabb and Upshaw doctrine, this statement was inadmissible.5

An application of the McNabb-Upshaw rule to the facts of this case suggests some problems which we think need not be here resolved. The rule, predicated upon a violation of the procedural requirements of 18 U.S.C.A. § 595, and its successor Rule 5(a) F.R.Crim.P., 18 U.S.C.A., is obviously a sanction enforced, pursuant to the supervisory power of the Supreme Court against civil officers making arrests for criminal offenses. Since Rule 5(a) could have no application to the conduct of the military forces occupying Japan, the question of application of this sanction in this case is not too clear. Appellant asserts that Article 70 of the Articles of War6 places a similar procedural burden upon military forces in this case. It is our opinion, however, that the appellant was not within any category of persons subject to the Articles of War; that she was neither a retainer to the camp nor a person accompanying or serving with the Armies. Articles of War, Article 2, 10 U.S.C.A. 1473; cf. In re Yamashita, 327 U.S. 1, 20, 66 S.Ct. 340, 90 L.Ed. 499.

The McNabb and Upshaw cases have no application here for the reason that appellant’s detention was legal and authorized by the laws of war. “The right of one belligerent to occupy and govern the territory of the enemy while in its military possession is one of the incidents of war, and flows directly from the right to conquer. We therefore do not look to the Constitution or political institutions of the conquerer for authority to establish a government for the territory of the enemy in his possession, during its military occupation, nor for the rules by which the powers of such government are regulated and limited.” Dooley v. United States, 182 U.S. 222, 230, 231, 21 S.Ct. 762, 765, 45 L.Ed. 1074, quoting Halleck on International Law, Vol. II, p. 444, cited in Gillars, supra, 182 F.2d at page 972.

It is apparent that at the time of appellant’s interrogation by the agent of the Federal Bureau of Investigation her detention was pursuant to the exercise of military power. Appellant was a resident of a country occupied by the United States military forces who had exacted an unconditional surrender from the enemy. The' cessation of actual hostilities had occurred *355only slightly more than one month before appellant was taken into custody. We take judicial notice that the situation then existing in Japan was somewhat parallel to that in Austria as described in United States v. Best, D.C., 76 F.Supp. 857, 863. While open warfare had ceased, the security of the occupation forcfes was a continuing problem confronting the military commanders. Appellant was a suspected traitor. That she might be capable of fomenting disorder among the Japanese population then being subjected to the yoke of military occupation, and of inciting discontent among the troops of the oc-cuping powers was a sufficient basis for the military to take the precautionary measure of interning appellant. The paramount interest of the occupation force is its own security. We see no abuse of military discretion in the protection of that interest.7 We hold that the confinement was within the constitutional sanction of the war power ; the restraint was legal, and the admission in question was not the fruit of an unlawful detention and was properly received, in evidence.

Another writing obtained while appellant was interned in this manner was a Japanese yen note signed “Iva I. Toguri ‘Tokyo Rose’”. It is claimed that this amounted to a confession and was not receivable for the same reasons urged with respect to the statement made to the Federal Bureau of Investigation previously mentioned. Not only do we consider this objection groundless for the reasons stated with respect to that statement, but it is apparent that the signed yen note was not a confession nor was it introduced as such. It was introduced early in the trial for the purpose of proving the appellant’s signature. It is contended that the document was received for the purpose of establishing her admission that she was “Tokyo Bose”. There was no attempt at the trial to identify the appellant as “Tokyo Rose”, as all of the evidence disclosed that she broadcast as “Ann” or “Orphan Ann”. The inclusion of the reference to Tokyo Rose in the signature on the yen note could under no circumstance be regarded as prejudicial to the appellant.

It is contended that wholly apart from the McNabb-Upshaw rule these and other so-called confessions were inadmissible because of a failure to establish their voluntary character.8 The necessary foundation of preliminary proof of voluntary character of these statements was laid in each case. Thus the FBI officer previously mentioned, testified that he identified himself to appellant, advised her of her right to counsel, and of her right to decline to talk to him, and testified that-no threats or promises of any kind were made to her. The circumstances of the interviews, which took place over a two day period, negative any inference of oppression or anything else inconsistent with the voluntary character of the statement. The mere fact of a lawful imprisonment does not render such a confession inadmissible. LaMoore v. United States, 9 Cir., 180 F.2d 49.

The other so-called confessions which appellant asserts were erroneously admitted were obtained at times when appellant was not interned or under arrest. She gave an oral interview to the military personnel assigned to the Army publication “Yank” magazine. Appellant says that the statement was coerced because she was interviewed by uniformed soldiers who told her that she “owed it” to the publication, and that giving one interview to a large number of newspaper correspondents at a single time would permit her to avoid being “badgered” by individual correspondents. This interview preceded by two days an interrogation by two members of the Counter Intelligence Corps and it is asserted that the same coercion affected both interviews.

These statements were properly admitted in view of the fact that appellant *356voluntarily attended in each case, was accompanied by her husband, and made her statement without any threats or coercion whatsoever. No factor is present which would tend to characterize these statements as involuntary.

Equally without ground is appellant’s objection to the evidence of her interview with a war correspondent, Clark Lee. The interview occurred before appellant’s internment. Later, on March 26, 1948, after she had been released from military custody, she signed the notes of the interview. She claims that she was coerced in both instances. The only circumstance suggesting coercion is the fact that when the interviewwas given the door was locked to keep other rival correspondents out of the rooms. At the time of the original interview appellant was attended by her husband and a friend. The interview lasted for about five hours with interruptions for “tea, cigarettes and things of that sort”. Two newspaper correspondents were present; they were in uniform and there were firearms in the room. The evidence shows no force or threats of force, no physical coercion of any kind, and no circumstances which would be unusual in a case.where a newspaperman has purchased an interview which he is attempting to keep exclusive.

At the time the notes were signed by appellant, an army vehicle was sent to bring her to General Headquarters for this purpose. Appellant was informed by an official of the Department of Justice who was then present that she most probably would be prosecuted for treason and that she did not have to make any statements.

The appellant did testify that Brundidge, one of the newspaper correspondents, told her on this last occasion when she signed the notes, that her opportunity to return to the United States would be enhanced if she signed them. Brundidge was not a “person in authority”.9 That there was no promise of leniency is apparent because of the statement simultaneously made that she probably would be prosecuted for treason.

7. Instruction relating to voluntariness of so-called confessions.

•Related to the matters just discussed is the appellant’s contention that the court should have permitted the jury itself to pass upon the question whether the so-called confessions were voluntary or involuntary with an instruction that if they found them to be involuntary they should disregard, them.

In view of the want of any substantial evidence tending to show that the confessions or any of them were involuntary, it would appear that there was no need for such an instruction. Stillman v. United States, 9 Cir., 177 F.2d 607, 619; Lewis v. United States, 9 Cir., 74 F.2d 173, 178. In any event, in order to predicate error upon the failure of the court to submit such a question to the jury, appellant must under Rule 30, F.R.Crim.P., point out the claimed omission from the charge to which she objects before the jury retired. The rule requires that such an appellant state “distinctly the matter to which he objects and the grounds of his objection.”

At the time when counsel for appellant were given the opportunity, called for by Rule 30, to make their objection to the court’s charge, they did not call the court’s attention to the specific point now argued, and failed to state in so many words that they requested the court to submit the question of the voluntariness of the confessions to the jury. What they said was simply “we except to the refusal of each of the following numbered instructions on the ground that each of the instructions states the correct law and is applicable to the evidence and not covered by other instructions.” This statement was followed by the enumeration of 128 separate numbers identifying instructions that had been requested by appellant. Included in this enumeration was appellant’s request*357ed instruction No. 88.10 If we assume that this wholesale blanket method of noting objections to the court’s charge was a sufficient compliance with Rule 30, an examination of the requested instruction 88 discloses that it was entirely too broad, for it was not directed to the alleged confessions, but referred to “various alleged statements by defendant as well as records of her voice test.” On the face of it, the requested instruction would comprehend all statements of the defendant of every kind whatever. It would comprehend statements made by her during the broadcast. It would include statements made by her not by way of confession or admission but which were received in evidence for their bearing as circumstantial evidence upon her intent. By its terms the instruction would apply to every oral or written statement attributed to the appellant by any witness. In such form it was properly rejected.

8. Requested instruction concerning proof of corpus delicti.

Another instruction requested by appellant and which bore upon the appellant’s admissions or so-called confessions, was defendant’s proposed instruction No. 30a as follows: “You cannot consider the defendant’s admissions upon any of the issues of (1) citizenship (2) aid and comfort or (3) intention unless you first find that the Government has introduced other credible corroborative evidence on the same issue. Pearlman v. U. S., 10 F.2d 460, 461, 462 (CCA 9). Goff v. U. S., 257 F. 294 (CCA 8).” We think there was no occasion for giving any such instruction here where there was substantial proof of the corpus delicti wholly apart from the admissions or confessions. The reference to the admissions relative to citizenship was erroneous for some of the appellant’s admissions reíative to her citizenship were made prior to the commission of the alleged offense. Such admissions need not be corroborated. Warszower v. United States, 312 U.S. 342, 347, 61 S.Ct. 603, 85 L.Ed. 876. This court has held that it is unnecessary to make full proof of the corpus delicti independently of the defendant’s confessions. Wynkoop v. United States, 9 Cir., 22 F.2d 799; Wiggins v. United States, 9 Cir., 64 F.2d 950, certiorari denied 290 U.S. 657, 54 S.Ct. 72, 78 L.Ed. 569. The corroborative evidence need not independently establish the corpus delicti beyond a reasonable doubt. It is sufficient if the corroborative evidence, when considered in connection with the confession or admission, satisfied the jury beyond a reasonable doubt that the offense was in fact committed. In Pearlman v. United States, 9 Cir., 10 F.2d 460, this court indicated that the usual instructions on presumption of innocence and reasonable doubt adequately covered all that the jury need be told upon this question of sufficiency of proof of the corpus delicti. We find no error in the court’s failure to give the requested instruction mentioned.

9. Questions relating to duress.

Appellant asserts that the trial court committed numerous errors relating to the claimed defense of duress or coercion. She argues that some of the instructions given upon this subject were erroneous; that other instructions requested by her should have been given, and that the court erred in excluding numerous items of evidence which were offered in support of this defense. The court instructed the jury at length upon the defense that the criminal act was not committed voluntarily but was the result of coercion, compulsion or necessity.11 The instruction included the state*358ment that “in order to excuse a criminal act on the ground of coercion, compulsion or necessity, one must have acted under the apprehension of immediate and impending death or of serious and immediate bodily harm. Fear of injury to one’s property or remote bodily harm do not excuse an offense.” It will be noted that the court’s instruction was almost identical to that approved in Gillars v. United States, supra, 182 F.2d at page 976, note 14. The charge was a correct statement of the law upon this subject. United States v. Vigol, 2 Dall 346, 2 U.S. 346, 1 L.Ed. 409; Respublica v. McCarty, 2 Dall 86, 2 U.S. 86, 1 L.Ed. 300; Shannon v. United States, 10 Cir., 76 F.2d 490; R.I. Recreation Center v. Ætna Casualty & Surety Co., 1 Cir., 177 F.2d 603, 12 A.L.R.2d 230.

Appellant seriously contends that however correct the instruction might be in an ordinary case where a person accused of crime committed in his own country claims to have been coerced by an individual, the instruction of the court was in error particularly in its requirement of apprehension of immediate and impending death, or of immediate bodily harm, in a case where the accused person was in an enemy country, unable to get protection *359from the United States and where the compulsion is on the part of the enemy government itself. The contention is that under these circumstances the requirement of “immediacy” in the court’s instructions was error. Appellant makes her point by quoting from East’s Pleas of the Crown, (1806, pages 70 to 71), as follows: “But if the joining with rebels be from fear of. present death, and while the party is under actual force, such fear and compulsion will excuse him. It is incumbent, however, on the party setting up this defence to give satisfactory proof that the compulsion continued during all the time that he staid with the rebels. It may perhaps be impossible to account for every day, week, or month; and therefore it may be sufficient to excuse Mm if he can prove an original force upon him, that he in earnest attempted to escape and was prevented, or that he was so narrowly watched, or the passes so guarded, that an attempt to escape or to refuse his assistance would have been attended with great difficulty and danger; and if the circumstances will admit of it, that he quitted the service as soon as he could: so that upon the whole he may fairly be presumed to have continued amongst them agam.st his will, though not constantly under an actual force or fear of immediate death.” (Italics supplied by appellant.)

However appropriate such quoted language might be in the case of a person impressed into military or naval service of the enemy, we think that under the circumstances here there was no occasion for departing from the ordinary rules applicable to the defense of duress and coercion. We know of no rule that would permit one who is under the protection of an enemy to claim immunity from prosecution for treason merely by setting up a claim of mental fear of possible future action on the part of the enemy. We think that the citizen owing allegiance to the United States must manifest a determination to resist commands and orders until such time as he is faced with the alternative of immediate injury or death. Were any other rule to be applied, traitors in the enemy country would by that fact alone be shielded from any requirement of resistance. The person claiming the defense of coercion and duress must be a person whose resistance has brought him to the last ditch.

In this same connection, appellant claims that the court erred in failing to give her requested instruction that she was an enemy alien of Japan. This instruction did not advise the jury as to what the legal consequences would be of appellant being in that category. The requested instruction did no more than furnish the jury a new name for persons in her position. We think that the failure to add this terminology to the instructions cannot have been prejudicial, for the jury was fully informed as to the precise situation of the appellant and their deliberations could not have been aided by supplying them with an additional name for her status.

In support of this defense of coercion, appellant testified that one Takano, her civilian superior, informed her that she was “to take army orders * * * you know what the consequences are * * She undertook to give this statement significance by testimony as to atrocities inflicted by the Japanese upon certain internees and prisoners of war who disobeyed military orders. The testimony relating to the statement of Takano is the only evidence in the record which would appear to support the giving of an instruction with respect to duress or coercion. Appellant testified that she was not forced to take her position at Radio Tokyo and said that she did not broadcast because of any actual physical coercion or threats thereof. The only qualification of this testimony was the statement of Takano which she testified was made to her before she began her broadcasting activities. She testified -that she was not mistreated by the Japanese police. She performed her duties as script writer and announcer for the Zero Hour from November, 1943, until August, 1945. During this period she had pay raises; she was allowed the usual American holidays, and occasionally she absented herself from the broadcasting for considerable periods of time. These absences did not result in any immediate or drastic measures from her employers. On those occasions she ignored verbal and written demands to return to *360work and did so with, impunity and only returned to work when a Japanese official called upon her. There is no evidence of any determined refusal on her part which might have provoked coercion or brought about immediate and actual danger to her. In other words, there is no evidence that the appellant ever so conducted herself as to bring about a demonstration that death or serious and immediate bodily harm was to be apprehended for a refusal.

Appellant was permitted to introduce a vast amount of testimony which she says was in support of her claim that she operated in fear and under apprehension of harm to herself. Thus, she testified that during her stay in Japan after war began, she was interrogated by the police and was kept under constant surveillance by them. Her living quarters were searched by the police and she was required to obtain permission to move from place to place. She asked to be interned but this was denied her. She also testified that her neighbors, other civilians, were suspicious of her; that she was under fear of mob violence from the Japanese populace. In addition there was received evidence of atrocities practiced on the prisoners of war by the Japanese and evidence that for refusal by prisoners of war to obey orders the penalty of death was inflicted. Other witnesses called by appellant testified to instances in which guards killed prisoners in cold blood and tortured and beat others. Some prisoners of war had been compelled by threats of death or other violence to participate in the operation of the Zero Hour broadcast. In general these experiences relating to such prisoners and to other victims of atrocities were communicated to the appellant.

Appellant says that the court erred in giving the last three paragraphs of the instruction quoted in note 11, supra, to the effect that the fact that she was required to report to the Japanese police was not sufficient; that surveillance of the police was not sufficient; that threats made to other persons were not sufficient, etc. Appellant asserts that by this portion of the court’s instruction it emasculated all of this background testimony which was designed to disclose that appellant was operating in an atmosphere of terror.

■In order to consider the propriety of the instruction here complained of it is necessary to- understand the very wide scope which the court permitted appellant’s testimony to take. Although a strict following of the rule laid down in Gillars v. United States, supra, would have excluded evidence of threats or duress against others who participated in the Radio Tokyo broadcast, the trial court here allowed great latitude to appellant’s counsel in placing in the record evidence of sundry atrocities committed by the Japanese against persons other than the appellant.

When appellant began her work on the Zero Hour at Radio Tokyo, she came in contact with three prisoners of war who had broadcasted at this station for a considerable period of time before she was employed there. These were a Major Cousens, an Australian prisoner; Captain Ince, an American prisoner; and Lieutenant Reyes, a Filipino prisoner. Appellant was permitted to testify as to accounts which were given her by these prisoners of war of the manner in which the Japanese military had compelled each of them to participate in broadcasting activities and she was permitted to relate their stories to her of their harrowing experiences at the hands of the Japanese from the time they were taken prisoners. This included their accounts of torture and murder of other prisoners of war at Singapore, at Manila, and at Camp Bunka in Japan, where the prisoners whom the Japanese were using for broadcasting were kept. She testified that Cousens informed her that the Japanese were brutal and uncivilized; that they were sly and cunning and never to be trusted. Similarly, Cousens, Ince and Reyes were permitted to testify as to atrocities practiced on the prisoners of war and which they themselves related to appellant. Thus Cousens in telling appellant how he came to broadcast on the Radio Tokyo gave her an account of how the men were being starved, beaten and tortured; how an Australian prisoner had been beaten to death with a club for stealing a can of onions and a Chinese prisoner had been beaten and put *361to death with the water torture because he went mad with hunger and tried to seize some food. Cousens related his experience in solitary confinement, his observation of Japanese guards murdering prisoners in cold blood for trying to' seize food, and how the Japanese officers told the prisoners that the punishment for disobedience would be death.

Ince and Reyes testified to' telling the appellant about being compelled to broadcast for Radio Tokyo because of threats against their lives. Reyes gave accounts of the beating to death at Manila of two1 of his co-workers in the Manila underground radio; he told of observing Japanese soldiers at Manila bayoneting civilians for hiding food, machine gunning civilians, and of seeing Major Ince beaten.

Ince testified as to atrocities committed against the prisoners confined at Camp Bunka. In addition, the appellant was permitted to testify as to' police surveillance of herself and of the suspicion with which she was regarded by other Japanese in the neighborhood where she resided.

At the time this evidence was received, the court clearly indicated the theory upon which it was permitted to go in. The trial judge considered that such testimony was relevant as bearing upon the state of mind of the appellant. It is clear that the court considered and made it apparent to counsel and to the jury when the evidence was received that it had to do with the general question of whether the appellant had reasonable ground for apprehension of danger when she participated in the broadcast.12

It is our view that after the court had thus received at the instance of appellant this large volume of testimony none of which disclosed any direct duress or coercion against the appellant but which was relevant only as bearing upon the ques-. tion of reasonable ground for apprehension on the part of appellant, it was proper for the court to give the instruction of which complaint Í9 made. As we understand appellant’s objection to it, it is not seriously urged that this portion of the instruction did not correctly state the law, but it is contended that it had the effect of leading the jury to disregard this evidence and of preventing it from considering its cumulative effect upon the mind of the appellant. It is suggested that the primary vice in the instruction is that it “did not tell the jury anything about the cumulative effect of the above elements or of all the elements on coercion.” It is objected that the instruction was one-sided in telling the jury that each of certain items of evidence would be insufficient without mentioning the cumulative effect of a combination of all this evidence.

It is true that the court might have told the jury about the possible cumulative effect of all this atrocity evidence. It is clear that such a comment by the court would have been a comment upon the evidence which a federal court might properly make. Yet to hold that prejudicial error resulted from a failure to make such a comment would, we think, require an improper assumption of a degree of ignorance on the part of the jury with which we think the jury cannot properly be charged. We think that the record on the whole discloses that the jury was not misled as to the significance of the atrocity evidence received and that it must have understood that the evidence was received because of its bearing upon the question submitted in the instructions as to whether the coercion or compulsion was “of such a nature as to induce a well grounded apprehension of death or serious bodily injury if the act is not done.”

All the requirements of fairness to the appellant were met when she was permitted to introduce such testimony and from it argue to the jury that it had a bearing upon *362what she necessarily understood Takano to mean when he said: “You know what the consequences are.”

Appellant requested the giving of the following instruction: “If you find that the defendant did the acts charged in the indictment, but entertain a reasonable doubt as to whether or not she was acting under fear of bodily injury, beating or the like, then you must find the defendant not guilty.” This proposed instruction No. 98 was one of the 128 listed in the manner previously mentioned. There was no error in refusing to give this instruction not only because it omits the required element of immediacy in connection with her fear of bodily injury, but the element of reasonable apprehension of injury was adequately covered in the instructions as given.

It is noted that the charge (see footnote' 11, supra), referred to coercion or compulsion present, immediate and pending “of such a nature as to induce a well grounded apprehension of death or serious bodily injury if the act is not done.” The jury were told that if they believed that the defendant committed these acts “under a well grounded apprehension of immediate death or serious bodily injury, to be inflicted by any particular person or agent of the Japanese Government * * *13 you would be warranted in finding that the defendant committed the alleged acts under coercion and compulsion, and under those circumstances it would be your duty under the law to return a verdict of not guilty.”

In view of that instruction, we cannot hold the failure to give the requested instruction No. 98 quoted above to be prejudicial. The court may properly refuse requested instructions which, in substance, have been covered in the court’s charge. May v. United States, 84 U.S.App. D.C. 233, 175 F.2d 994; Nye & Nissen v. United States, 9 Cir., 168 F.2d 846, affirmed 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919. Elsewhere in the instruction the court charged the jury: “This brings us to a consideration of what effect, if any, duress, coercion or compulsion may have upon the acts of a person charged with a crime. You will note that during my charge to you I use the expression ‘if you find that the defendant committed these acts’, and, of course, that means that they must be in law, voluntary acts, that is, acts that were done purposefully, freely, and that they were intended and unconstrained.” In our opinion, the instructions of the court contained on the whole an adequate statement of the law relating to duress and coercion, and they were in our opinion as favorable to appellant as she had the right to demand.

Appellant argues that although the court received some evidence of the character herein mentioned, it erred in refusing to admit additional evidence (1) of duress on others, some of which was communicated and some of which was not communicated to appellant, (2) that the entire broadcasting staff of Radio Tokyo was in'a state of fear; and (3) that appellant’s neighbors made unfriendly demonstration against her.

We have previously noted that the court received a substantial amount of evidence of this same character. Appellant asserts that since the question of her reasonable apprehension of danger could only be judged in the light of all the relevant circumstances that the jury could not properly consider her situation in respect to the claimed duress unless they were permitted to weigh the cumulative effect of all such evidence. Therefore, appellant says, it was error for the court to receive some items of evidence of this character and exclude others.

We have examined with considerable care the items of evidence thus re*363jected by the court.14 It was within the discretion of the trial court in passing upon the admissibility of this atrocity evidence and related matters to hold that in order that it be relevant as bearing upon the state of mind of appellant, and upon the question of her reasonable grounds for apprehension, that it must have been communicated to her. Testimony of what happened to prisoners of war in South Burma in 1942 if not known to appellant would be of very doubtful significance in respect to any question before the court. Appellant argues that evidence of the treatment of prisoners of war by the Japanese, even although not communicated to appellant, would be relevant in showing that “the Japanese actually imposed the death penalty for trivial offenses; it tends to show fears well grounded that such a fate would also befall one in her position.” We believe that the logical relevance of such testimony would be so doubtful that it was properly within the discretion of the presiding judge to draw the line where he did. The trial judge was in a much better position than any appellate court could be to determine whether this line of testimony was likely to get out of hand and mislead the jury unless held within reasonable bounds.

Had appellant been permitted to introduce evidence of Japanese atrocities and mistreatment of prisoners without limitations as to whether appellant knew or did not know of the circumstances related, it might well have led to a situation in which the jury were given the impression that appellant was undertaking to prove that all Japanese were cruel, savage and sadistic and hence that she had the right to fear them all. Thus appellant sought to introduce an exhibit “W” which purported to be the orders given to Wake Island prisoners, on the occasion of their being transported by boat to another prison camp. The substance of the regulations was to the effect that disobedience of orders and instructions by the prisoners would be punished with death. The regulations contained numerous specific prohibitions such as walking without permission; touching the boat’s materials, wires, etc.; climbing ladders without order; running away from the boat; trying to take more food than allowed, etc. Even if appellant had known of these regulations, their relevance would be doubtful for her position as a civilian broadcasting employee was so different from that of a prisoner being transported by ship that this exhibit would be properly rejected in any event. As a bit of evidence of Japanese ruthlessness not communicated to appellant, it was clearly improper.

The greater part of the exclusionary rulings with respect to this type of evidence were made upon the simple ground that when offered it had not been shown that the incident sought to be testified to had been communicated to the appellant. When that situation appeared, the court properly held that a proper foundation for its introduction had not been -laid.15

Since the court properly held that such evidence would be relevant only if *364communicated to the appellant, the trial court’s discretionary power to control the order of proof warranted his requirement that -before such evidence be received it be established that the .¿acts were communicated to the appellant.16

For this reason we think that numerous of the exclusionary rulings of which appellant complaints were altogether proper.17

Other rejected evidence which appellant asserts should have been received was clearly irrelevant under any theory18

Some of the objections to the court’s rulings excluding offered evidence appear to be somewhat trivial.19

J Another group of rulings compia¡ne¿ 0f amounted to no more than a refusal of the judge to permit a repetition of testimony previously given by the same witness.20 The sustaining of such objection cannot possibly be prejudicial.

Other rulings which are related to matters involving the order of proof were the sustaining of objections to certain questions *365which were objected to as not proper cross examination.

It appears to us that the objections in these cases were properly sustained on that ground, and hence that appellant is in no position to allege prejudice.21

We conclude that there was no prejudicial error in the court’s rulings with respect to the receipt of evidence of the character here discussed.22

10. Public trial.

The Government introduced exhibits 16 to 21 which were phonograph records made by persons recording and monitoring what was said on the Zero Hour broadcast when appellant was broadcasting. The exhibits were used for the purpose of identifying the sound of the appellant’s voice. The records when played were inaudible without earphones and hence the Government provided about 40 earphones for the judge, jury, clerk, court reporter, appellant, counsel and members of the press. Appellant objected that this procedure denied her a public trial in that the public spectators could not hear the exhibits.

A similar contention was rejected in Gil-lars v. United States, supra, and we think correctly. Essentially the records were exhibits and we think that appellant might as logically argue that she was denied a public trial because certain exhibits such as photographs, samples of handwriting, etc., although examined by the parties and by the jury were not passed around to the spectators in the courtroom. We think that the contention as to lack of public trial is wholly without merit.

11. Geneva Convention.

Appellant complains of the failure of the trial court to give instructions relating to the Geneva Convention and to the fact that under that Convention a nation at war may require its prisoners of war to perform “work indirectly related to the war effort.” The claim was that if the jury should find that the broadcasting activities only indirectly related to the Japanese war effort then none of the overt acts charged *366could be an overt act of treason within the meaning of the Constitution.

The first difficulty about the application of the Geneva Convention to acts performed by appellant is that appellant was not one of the persons referred to in that Convention, which refers only to prisoners of war. Appellant was not 'in that category; she was an uninterned civilian.

We think that the Geneva Convention did not change the law of treason. If the overt act performed by appellant was such as to give aid and comfort to the enemy, the fact that the the enemy could have legally demanded a similar act under the terms of the Convention is irrelevant. It is essential to the crime of treason that the overt act be committed with the intent to betray the United States. Appellant says that unless the act itself is criminal, “no intent can turn it into treason”. Such is not the law. “The very minimum function that an over act must perform in a treason prosecution is that it show sufficient action by the accused, in its setting, to sustain a finding that the accused actually gave aid and comfort to the enemy.” Cramer v. United States, 325 U.S. 1, 34, 65 S.Ct. 918, 934, 89 L.Ed. 1441. The overt acts in the Haupt case (Haupt v. United States), 330 U.S. 631, 67 S.Ct. 874, 91 L.Ed. 1145, consisted of the accused’s furnishing food,lodging, transportation and employment to his son. Certainly these acts of parental solicitude are not criminal. However, the fact the son was a German saboteur, known as such to his father who had expressed his admiration for the Nazis and antipathy towards the United States, in addition to these overt acts, were held to constitute sufficient basis to sustain a conviction for treason. We think the court did not err in its ruling upon this point.

12. Claimed misconduct of prosecutor.

Appellant asserts that on numerous occasions during the trial, Government counsel were guilty of such serious misconduct that the record in respect to this requires a new trial. These claims of misconduct relate to alleged misstatements of the record during the argument to the jury; alleged misstatements of the testimony of other witnesses which were incorporated in questions propounded to appellant and in arguments made to the jury asserted to exceed the bounds of propriety. Thus, .it is said, that Government counsel in argument -to the jury misstated overt act No. 6 as follows: “That was in October, 1944. Overt act 6. She unhesitatingly, unequivocally, denies broadcasting those words or anything like it. Well, you can understand why she refuses to admit the voicing of that broadcast. The government has produced not two witnesses, but five, who contradict her testimony. Mitsushio, George Mitsushio, Kenkichi Oki, Satoshi Nakamura, Clark Lee and Richard Henschel. Now this testimony from five witnesses that -the defendant broadcast the .incident about American ship losses after Leyte Gulf, concerning which five government witnesses testified. * * * It is said that this was misconduct, for one reason, because Clark Lee’s testimony was merely with respect to his later interview with appellant in which appellant had stated to Lee that she had broadcast about the loss of ships, (which was the subject of overt act No. 6. However, the testimony of Lee was that the appellant’s statement identified this broadcast as following the Battle of Formosa. The witnesses who gave direct testimony concerning overt act No. 6 had identified it as. a broadcast following the Battle of Leyte Gulf.

It is asserted that it was misconduct for the prosecutor thus to list Clark Lee as a fifth witness to overt act 6. When the argument was made, it was challenged by counsel for appellant who assigned it as misconduct and requested the court to direct the jury to disregard it. Thereupon the court told the jury that argument is not evidence; that the matter of evidence was entirely with the jury; that they had heard the evidence, and that it was for them to take action on that evidence. In addition, the court in its general charge to-the jury, told them: “You should distinguish carefully between what has been testified by the witnesses and what has been stated by the attorneys. Statements and arguments of counsel are not evidence in the case.” Again the jury were charged! *367in great detail that in order to establish an overt act the minimum proof necessary is the direct evidence of the overt act given through the testimony of at least two witnesses. In this connection the court charged the jury that persons who testified to out of court admissions of the defendant may not be counted as witnesses within the meaning of the constitutional requirement. The court further named the three witnesses who the jury were told had testified concerning the commission of overt .act No. 6.

It appears to us that what the prosecutor was here arguing was merely that although appellant had denied making any such broadcast about the loss of ships at any time whatsoever, she had been contradicted by five witnesses including Clark Lee. Prosecutor proceeded to read verbatim the testimony of Clark Lee on this point.

The trial judge had an opportunity far superior to that afforded us to judge whether the remarks of counsel in the setting in which they were given constituted such misconduct as to require a more emphatic admonition or instruction to the jury to disregard. Manifestly the argument in question was but a momentary phase in an extended argument which concluded a three months’ trial. Our system of adversary procedures in the trial of cases is designed to arrive at the truth by encouraging vigorous prosecution and defense. The making of arguments by counsel which are sometimes unwarranted by the evidence is commonplace as counsel are frequently carried away by the ardor of advocacy and the excitement of trial. If every remark of counsel outside the record were ground for reversal few verdicts would stand. Our system of jurisprudence properly makes it a matter primarily for the discretion of the trial court to determine whether prejudicial misconduct has occurred. An appellate court will not review the exercise of the trial court’s discretion in such a matter unless the misconduct and prejudice is so clear that it can be said that the trial judge has been guilty of an abuse of discretion. We think that such cannot be said with respect to the incident here referred to.

For the reasons we have just expressed we are satisfied that we cannot upon this record hold that the trial judge was guilty of reversible error in the manner in which he dealt with the other claims of misconduct of the prosecutor in the course of his argument to the j.ury.

Thus, it is argued that a certain exhibit 52 was offered and received solely for the purpose of impeachment of a defense witness, and in his argument to the jury one of counsel for the prosecution attempted to assert that it constituted substantive evidence of the facts recited in the exhibit.

This exhibit was a statement in writing which the witness Reyes had previously given to an officer of the Federal Bureau of Investigation. Reyes had testified on behalf of appellant that he with Cousens and Ince had undertaken to sabotage the propaganda programs of Radio Tokyo and that' they secured the- aid of appellant in so doing. The exhibit in question contained statements which tended to contradict that testimony. The prosecutor argued to the jury as follows: “Reyes’ statements that he made to members of the FBI are quite illuminating. He made a statement on October 2nd, 1948. It is Government’s Exhibit No. 52, I think, I will read the entire statement to you ladies and gentlemen. I think it is a very important piece of evidence in this case. Proves conclusively that there was no sabotaging of the program.” Appellant asserts that this was an improper argument that the exhibit proved substantive facts in the case, and that such argument was misconduct.

We think that it cannot be demonstrated that the argument had that effect. We believe it was not out of order for counsel to assert that the prior contradictory statement was “quite illuminating”. We also think that it could properly be argued that the making of the prior contradictory statement proved that the facts were not as testified to by the witness upon his direct examination. That is all that the argument amounted to.

During the argument one of counsel for the Government made the statement that some of the prisoners of war might later *368be put upon trial. Objection to the remark was made by counsel for appellant and the court was asked to instruct the jury to disregard it. The court granted the request and told the jury: “We are not concerned about any one that may or may not be prosecuted. So you may disregard that for any purpose in this case.”

Also during the argument Government counsel in quoting the testimony of one Sugiyama stated that the latter had testified that he heard the appellant broadcast: “You must be lonely out there. It is very uncomfortable out there.” At the conclusion of this argument counsel for appellant stated to the court, “We assign as misconduct and ask that the jury be instructed to disregard as being a distortion of the evidence the statement that Harris Sugiyama quoted here as saying ‘you must be lonely out there’ * * * and stopping there; the full quotation is: ‘You must be lonely out there. Let me cheer you up with some music.’ ”

This correction of the quotation and request for an instruction was made in the presence of the jury and was followed by some additional objections as to portions of the Government’s argument. The court then immediately said to the jury: “I will indicate to the jury at this time that the argument is not evidence. The matter of evidence is entirely with the jury. They heard the evidence in this case and it is for them to take action on that evidence.”

This statement of the court, as indicated, alluded to the objection of appellant quoted above and also to the appellant’s request “that the jury be instructed to disregard the argument that this case should serve as a warning to others.” This referred to the prosecutor’s argument that “This matter should serve as a warning to others that they cannot, in our great hour of peril, desert their country and with impunity adhere to the enemy — and'not, if the United States survive, be brought to book before a federal court of justice.”

We have previously quoted from the general charge to the jury the instruction to distinguish between testimony and argument. The court added: “You must consider only evidence before you. That evidence consists of sworn testimony of witnesses with the exhibits which have been received in evidence, all facts which have been stipulated or agreed to by counsel, and all applicable presumptions stated in these instructions. * * * Remember also that the question before you can never be whether the Government wins or loses the case. The Government always wins when justice is done regardless of whether the verdict be guilty or not guilty.”

We think that under these circumstances it cannot be said that there was any misconduct of Government counsel of such character as to require a new trial. Cf. Holt. v. United States, 218 U.S. 245, 250, 31 S.Ct. 2, 54 L.Ed. 1021. The remarks complained of were, all taken together, but brief and isolated portions of a six hour argument concluding a three months’ trial. We are in no position as an appellate court to find the rulings made by the trial court inadequate to assure a fair trial. Cf. Johnston v. United States, 9 Cir., 154 F. 445, 449; Mellor v. United States, 8 Cir., 160 F.2d 757, 765; Stephan v. United States, 6 Cir., 133 F.2d 87, 99; Dunlop v. United States, 165 U.S. 486, 498, 17 S.Ct. 375, 41 L.Ed. 799; Crumpton v. United States, 138 U.S. 361, 364, 11 S. Ct. 355, 34 L.Ed. 958.

Other claimed instances of the prosecutor’s misconduct have to do with certain cross or re-cross-examination of the appellant. Thus it appears that upon re-cross-examination, Government counsel referring to Government’s exhibit 5 and defendant’s exhibit B-P, repeatedly endeavored to get the appellant to admit that she never applied for reestablishment of her citizenship. It is argued that the exhibits themselves disclosed a letter written by appellant to American Consular Service referring to^an application for reestablishment of her American citizenship. In alluding to this examination, appellant says that the prosecutor “browbeat” appellant through six pages of coercive, bullying cross-examination. We think that the most that this portion of the record discloses was that the prosecutor was proceeding up the wrong alley, for he got nowhere by this cross-examination. The witness was-*369not misled and the whole effort amounted to nothing. Nor is there anything in this cold record to indicate that the trial judge should have assumed that in this futile effort the prosecutor was proceeding dishonestly or in bad faith.

The other alleged instances of misconduct of the prosecutor in cross-examination of the appellant appear to us to be petty and too clearly without merit to warrant more extended discussion.23

13. Cross-examination of defendant-appellant.

Appellant complains of several rulings on the testimony given during the time that she was under cross-examination by Government counsel. On a number of occasions during her cross-examination with respect to matters on which her testimony had differed from that of other witnesses, she was asked if she heard the testimony of a certain Government witness upon that point. When she replied that she had heard such testimony and that it was in disagreement with what she was then saying, appellant was asked if the other witness was in error.24 She now urges that it was error for the trial court to permit such questions to be asked on the ground that it is improper to ask one witness to pass on the truth or falsity of testimony of another witness.

Undoubtedly the rule thus stated is one of general application and supported by authorities. But we think it has no application to the facts here. Essentially what happened here was not an attempt to procure the opinion of one witness as to the veracity of another witness; what was sought was to point up the contradiction in the appellant’s testimony for the purpose of more effectively bringing that contradiction to the attention of appellant and of the jury as part of the cross-examination. When the appellant herself took the stand and undertook to testify upon direct examination concerning these sundry subjects, she subjected herself to cross-examination on behalf of the prosecution as fully as any other witness in the case. Powers v. United States, 223 U.S. 303, 315, 32 S.Ct. 281, 56 L.Ed. 448; Shipley v. United States, 5 Cir., 281 F. 134, certiorari denied 260 U.S. 726, 43 S.Ct. 89, 67 L.Ed. 483.

The right to cross examine a witness is fundamental in our judicial system. Vigorous and searching cross-examination is a powerful instrument for the ascertainment of truth. Appellate courts, particularly, are loath to lay down rules which might unduly restrict the latitude of cross-examination. The proper limit of fair cross-examination is a matter within the sound discretion of the trial court. Austin v. United States, 9 Cir., 4 F.2d 774, 775; Land v. United States, 4 Cir., 177 F.2d 346, 350.

We think that the method of cross-examination adopted by the prosecutor in this case was proper. Certainly the rulings of the court below cannot be said to evidence an abuse of discretion. Appellant is unable *370to demonstrate any prejudice to her arising out of the rulings of the trial court upon these questions. Cf. United States v. Buckner, 2 Cir., 108 F.2d 921, 929, certiorari denied 309 U.S. 669, 60 S.Ct. 613, 84 L.Ed. 1016.

Another claim of improper cross-examination of appellant relates to the inquiries addressed to her as to overt act No. 8. Counsel for appellant objected to the cross-examination upon this point on the ground that it was improper as relating to matters that were not touched upon on direct examination of the witness. We think that appellant's contention is based upon a misunderstanding of the proper scope of cross-examination. Appellant had given testimony in her direct examination designed to show both directly and circumstantially her good intent and her lack of intent to betray the United States. Thus the whole question of appellant’s intention was open to inquiry upon cross-examination and the cross-examiner was entitled to bring up for examination any matter which rightly had a bearing upon intent. The intent necessarily had to be gathered from the acts and conduct of the appellant. Chandler v. United States, supra, certiorari denied 336 U.S. 918, 69 S.Ct. 640, 93 L.Ed. 1081. If she participated in overt act No. 8 that fact would have an important bearing upon her intent and would be material because of the inferences properly drawn from it. Austin v. United States, 9 Cir., supra; Diggs v. United States, 9 Cir., 220 F. 545, 563, affirmed 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442.

Within the compass of some seven pages of her brief, appellant lists wh-at she calls a “long procession of errors” and a “torrent of improper questions”, all relating to cross-examination of appellant. Notwithstanding these same pages contain some of the most flagrant failures to comply with the rule relating to specification of errors, and the appellant has here wrapped up in a small bundle a very long list of complaints which have been dumped into the lap of the court, we have painstakingly examined each one and conclude they are without foundation and relate to matters which in our opinion cannot possibly be prejudicial.25

14. Cross-examination of appellant’s witnesses.

Appellant makes numerous objections to the rulings of the trial court as to the scope of cross-examination of certain defense witnesses. One of her witnesses, Ito, testified about many conversations she had with appellant during the latter’s stay in Japan. The direct examination was designed to disclose appellant’s loyal attitude toward the United States. Upon cross-examination the witness was asked whether appellant had talked about her work at Radio Tokyo and thereupon these portions of the conversations were developed by questioning the witness.

*371If parts of the conversations were given upon the issue of intent, it seems obvious that other contemporaneous conversations bearing on the same subject could be properly developed on cross-examination. Counsel cannot bring out favorable parts of a conversation and then preclude his opponent from developing on cross-examination the unfavorable parts.

It is complained that in cross-examination of appellant’s witness Reyes, the prosecutor insisted upon a yes or no answer and refused to afford the witness an opportunity to explain the answer given. There is no basis in the record for this contention. Reyes admitted during the trial that portions of his sworn testimony were false and he was given an opportunity not only to explain his answers but to explain why he had given false testimony. Other faults were found with the cross-examination of Reyes but we find the contentions without merit.

Objection is made to the fact that Government counsel in cross-examining appellant’s witness, Ince, referred to appellant as a Japanese. The question was: “Now the defendant was not the only Japanese with whom you were friendly, was she?” It was objected that the question was highly improper and that there was no evidence that the defendant was Japanese. It is asserted that this was an appeal to race prejudice and denied appellant a fair trial. Since appellant was present in court, and since 'her ancestry and racial origin were admitted and testified to by her, we find no prejudicial error in permitting the asking of the question.

15.' Limitations placed upon cross-examination on behalf of appellant.

Appellant lists a number of respects in which she says that the court unduly restricted her cross-examination of certain Government witnesses. After the witness Clark Lee had testified on direct examination as to what appellant had told him during^his interview of her understanding of the purpose of the Zero Hour, and that she had said that she Understood that the purpose of that broadcast “was to make them homesick and unhappy about sitting in mud”, counsel for appellant asked Lee on cross-examination if Lee had not stated in a book written by him that appellant’s programs were entertaining to the troops. We think that the objection was properly sustained. It would have been proper to impeach Lee by proof of prior statements which contradicted his direct testimony, but his direct testimony had nothing to do with his own opinion of appellant’s broadcast. What Lee said in his book about the entertainment value of appellant’s broadcast in no manner tended to contradict his direct testimony as to what appellant told him when he interviewed her.

Equally groundless is the complaint as to the sustaining of an objection to questions put to Lee as to whether a certain Colonel Munsing told Lee in Tokyo that “Tokyo Rose” was a Canadian girl. Aside from being obvious hearsay the statement was without value for want of any testimonial foundation.

Complaint is made that the court refused to allow counsel for appellant to ask Lee if appellant could possibly have obtained counsel at the time she, in the presence of her husband, had her interview with Lee. The question .was objectionable for the matter was irrelevant and immaterial. It was admitted that no counsel was present at the time. To ask Lee whether it would have been possible for her to obtain counsel was to seek the sort of speculative conclusions which appellant was not entitled to ask the witness.

Appellant complains she was not allowed to ask the Government witness Henschel whether he had an opinion as to appellant’s guilt or innocence. Appellant asserts that she had a right to ask this question for the purpose of demonstrating the witness’ bias. The right to demonstrate bias of a witness is unquestionable, but the interrogation in this instance was not designed to demonstrate either bias or lack of bias. Moreover, the inquiry was highly objectionable because it sought a conclusion from a witness upon the question which was exclusively within the province of the jury.

*372One Nii was a Government witness. On cross-examination he said he did not remember what he said to appellant’s counsel in an interview in Japan in the spring of 1949 because both parties were drinking and he and the attorney were both intoxicated. On redirect examination the witness testified that the liquor on the occasion in question was furnished by appellant’s attorney. On re-cross-examination Nii was asked how much liquor he customarily consumed during the spring of 1949. Ofoj ection to this inquiry was sustained and the appellant claims such was error.

To have permitted this inquiry, which at most might have developed that Nii was a heavy drinker, would have been an attempt to impeach the witness by proof of particular acts of misconduct. Shively v. United States, 9 Cir., 299 F. 710, 713, certiorari denied 266 U.S. 619, 45 S.Ct. 99, 69 L.Ed. 471. In any event, Nii’s drinking habits would have so little relation to what transpired upon the occasion of the interview that the court’s refusal to permit the inquiry cannot he said to be prejudicial.

Other complaints of limitations in cross examination relate to refusal to permit appellant to ask Government witness, Villarin, the names of Japanese officers who had threatened him, and to the refusal to permit cross examination of Government witness Hall as to whether he heard broadcasting from a Japanese station at Rabaul. As neither inquiry was proper cross examination the ruling in each case was correct.

16. Miscellaneous rulings on evidence.

Through the deposition of one Saisho, the appellant sought to impeach three Government witnesses by reputation evidence. In respect to two of these witnesses the inquiry fixed no locale for the reputation. None of the questions fixed any time for the existence of the reputation inquired about, and in each case the inquiry was with respect to the reputation of the witness with reference to “truth, honesty, and integrity”.26 The common rule is that the inquiry .should be limited to the traits involved, namely, “truth and veracity”. Powell v. United States, 9 Cir., 35 F.2d 941, 942. For the reasons stated in the last cited case we think that the trial court’s ruling was correct.

Complaint is made of the exclusion of a number of questions propounded to the appellant which so clearly called for hearsay evidence that extended discussion of the points made is not warranted here.27

*373Other rulings on the admission of evidence offered by the appellant were so clearly proper that the mere statement of the offered evidence discloses its impropriety.28

17. Evidence that appellant’s broadcasts were harmless.

Appellant offered certain evidence designed to show that the effects of her broadcasts were either beneficial to the morale of American armed forces or at any rate were harmless. That a traitorous plan does not have the desired effect is immaterial. Chandler v. United States, supra. Cf. Gillars v. United States, supra; Haupt v. United States, supra, 330 U.S. at page 644, 67 S.Ct. at page 880.

A further reason for the rejection of this evidence is found in the character of the rejected testimony itself.29

18. Claimed evidence of fraud in preparation of Government’s case.

Appellant undertook to prove that there was fraud in the preparation of the Government’s case. This appellant says, she was prepared to prove through showing first, that certain subpoenas to Government witnesses were fraudulently issued, and second, that one Brundidge on behalf of the Government had bribed or attempted to bribe Government witnesses.

In our opinion the proof offered would have no tendency to establish any claim of fraud. It was intended to prove that although the trial, originally set for May 16 was postponed to July 5, 25 Government subpoenas required certain witnesses to appear on June 27, 28, 29 or 30. Even if the subpoenas had been admitted, they would have no tendency to show fraud, rather than mistake or oversight, and in any event, the witnesses were the only persons that could complain. Sachs v. Government of the Canal Zone, 5 Cir., 176 F.2d 292, 296.

As for Brundidge, his claimed unsavory conduct was offered to be proven only by hearsay evidence and the offered evidence that his trip as a newspaper man accompanying a Department of Justice attorney *374was in part paid for by the United States and that he had an army permit reciting that he was on official business for the Department of Justice fell far short of disclosing that any of his acts of misconduct were within the course of the claimed employment.

19. Identification of appellant as Tokyo Rose.

Appellant says that she was prejudiced by the admission in evidence of exhibits 16 to 21 which were recordings of her broadcast bearing the notation on each that they were broadcasts by “Tokyo Rose”. She says that the Government was attempting to label her as Tokyo Rose.

It appears that the persons who made the recordings identified them in the manner indicated. But there was no claim on the part of the Government that appellant broadcast as Tokyo Rose, and the marks upon the recordings were not relied upon to tie them to the appellant’s broadcast. Their authenticity was proven by entirely different evidence. It was hardly more significant that the records bore the notation “Tokyo- Rose” than would have been the case had the recordings been painted a particular color or been scratched in a peculiar manner.

It was not disputed that the appellant herself had chosen at times to refer to Tokyo Rose. We have mentioned the yen note. She also autographed a number of scripts of her broadcasts and gave them away to various persons marking them herself with a reference to Tokyo Rose. We think that the circumstances that the recordings bore this notation was in no way prejudicial to appellant.-

Appellant tried to show that the name “Tokyo Rose” had 'been in circulation long before she began to broadcast. The witnesses by which appellant undertook to prove this had never heard broadcasts of the Zero Hour, and all that was sought from them was hearsay evidence that the appellation Tokyo Rose was in circulation in the early years of the war. Under the circumstances here, this was immaterial and the evidence by which it was sought to be injected in the case was incompetent.

20. Refusal to permit offers of proof.

Appellant rather bitterly complains that on many occasions when the court sustained objections to questions propounded by counsel for appellant, the court did not permit appellant forthwith to make offers of proof.30

If this -court were to hold that appellant was precluded from claiming error in the sustaining of an objection to a question propounded on her behalf for want of an offer of proof, then the court’s refusal to -permit the offer to be made might well be prejudicial. It is of course elementary that an offer of proof is required where it is necessary to enable -the appellate court to determine whether the excluded answer would have been such as to affect the substantial rights of the parties. Wigmore, Evidence, 3d Ed. Sec. 20, p. 357. But a formal offer of proof is not necessary where the record shows, either from the form of -the question asked or otherwise,, what the substance of the proposed evidence is. Cf. Meany v. United States, 2 Cir., 112 F.2d 538, 539, 130 A.L.R. 973; Clauson v. United States, 8 Cir., 60 F.2d 694, citing; *375Buckstaff v. Russell & Co., 151 U.S. 626, 636, 14 S.Ct. 448, 38 L.Ed. 292.

The appellant has not found herself handicapped because of any holding on our part that an essential offer of proof was missing. In each instance called to our attention it is apparent that any conceivable answer would have been inadmissible.31

21. Question of appellant’s inspection of reports by Federal Bureau of Investigation.

Prior to the trial, FBI agents Dunn and Tillman had interviewed defendant’s witness Reyes. In the course of that interview they had procured the execution by Reyes of two writings subsequently introduced as exhibits 52 and 54. They also made inquiry of Reyes about his personal history which Reyes gave to them orally. They took notes of this conversation and subsequently made a report of this matter in accordance with their usual practice, and the notes were destroyed. This investigative report contained an account of Reyes’ oral conversation about his personal history. No part of the record was used or referred to in the course of the testimony by the agents, either for refreshing memory or otherwise. While Tillman was on the stand counsel for appellant made the demand: “That the notes made by the Federal Bureau of Investigation agents * * * made to them or either of them on or about October 5, 1948 by Norman Reyes * * * be produced for inspection and examination and for use in examining * * * the witness Frederic Tillman who is on the stand.” At the time Tillman had been called in rebuttal to testify as to the voluntary execution of exhibits 52 and 54.

We think that the correct ruling is that recited in Goldman v. United States, 316 U.S. 129, 132, 62 S.Ct. 993, 995, 86 L. Ed. 1322, to the effect that it is “the better rule that where a witness does not use his notes or memoranda in court, a party has no absolute right to have them produced and to inspect them.” That case also held that under the circumstances here existing, whether the Government’s files be produced should in general be a matter for the determination of the trial judge.

It is apparent that what was sought here was but a part of the work papers used by the prosecutor in preparing the case. There was a complete lack of showing that the papers in question were relevant for the purpose of impeachment. Cf. Arnstein v. United States, 54 App.D.C. 199, 296 F. 946. We think it cannot be said that in refusing to require production of this paper the court abused its discretion.

22. Refusal to produce defendant’s witnesses from Japan.

Appellant filed a series of motions requesting the court to issue subpoenas to some 43 witnesses residing abroad requiring their attendance at the trial at the expense of the Government. After six such motions, a seventh motion requested that in the event of denial of the previous motions,, the court provide for the taking of depositions at Government expense of witnesses residing abroad. This motion was granted and the others denied. The Government was thereupon required to defray the expense of taking the depositions and of appellant’s attorneys’ travel and subsistence expense for that purpose. Subsequently stipulations were made enlarging the list of persons whose depositions might be taken.

Substantially all of the persons for whom process was thus sought were not United States citizens and their attendance could not have been compelled. Cf. Blackmer v. United States, 284 U.S. 421, 52 S. Ct. 252, 76 L.Ed. 375; United States v. Best, *376D.C., 76 F.Supp. 138, 139; 28 U.S.C.A. § 1783. In any event, the question of payment by the United States of fees and expenses of defense witnesses is one within the sound judicial discretion of the trial court. Meeks v. United States, 9 Cir., 179 F.2d 319; Dupuis v. United States, 9 Cir., 5 F.2d 231. Cf. Goldsby v. United States, 160 U.S. 70, 16 S.Ct. 216, 40 L.Ed. 343. We find no reversible error in the action of the trial court here referred to.

23. Instruction respecting overt act No. 6.

In the course of its charge to the jury, the trial court listed and sorted out the various overt acts charged in the indictment and stated to the jury: “The witnesses who testified regarding the commission of overt act No. 6 were George Mitsushio, Kenkichi Oki, and Shatoshi Nakamura.” Appellant asserts that it was error for the court to tell the jury that Nakamura had testified to overt act No. 6 for the reason that while the other two witnesses mentioned had placed this act in October, 1944, Nakamura testified to a similar broadcast “in the fall of 1944”. It is argued that since the fall of 1944 covers more than October, Naka-mura might have been referring to a different incident. Appellant says that the jury should have been allowed to pass upon the question whether Nakamura did or did not testify as to overt act No. 6.

We think that the record does not sustain this argument. Nakamura testified as to a broadcast concerning a loss of ships. He was present in the studio and he heard the news broadcast concerning the battle of Leyte Gulf. Immediately thereafter the witness introduced the appellant. He described the news broadcast in the following manner: “Q. What did he say, Mr. Nakamura, everything to the best of your recollection that he said. A. Americans 'have lost many ships in the battle. Q. What battle? A. The Battle of Leyte Gulf.” Immediately thereafter he took the microphone and said, “So much for the war news and here comes Orphan Ann”. Thereupon appellant made the broadcast described by this witness. We think the circumstances thus demonstrated compel a conclusion that Nakamura was describing the same incident as the other two witnesses. The instruction was correct.

Since we find no prejudicial error in the record the judgment is affirmed.