268 F. 15 | 4th Cir. | 1920
A general verdict of guilty was found against the appellants, seamen of the United States merchant ship Poughkeepsie, on an indictment framed under section 292 of Penal Code (Comp. St. § 10465). The first count charged an endeavor to make a revolt; the second, conspiracy to make a revolt; the third, a combination and conspiracy “to refuse and neglect to perform their proper duty on board of the said vessel.”
The pivotal question is whether the evidence required the direction of á verdict of acquittal. The shipping articles, dated August 5, 1919, stipulated for the voyage as follows:
“From the port of New Fork to one or more ports in France, and such other, ports and places in any part of the world as the master may direct, and back to a final port of discharge in the United States (north of Cape Hatteras), for a term of time not exceeding six calendar months.”
Counsel contend that a verdict of acquittal should have been directed for three reasons: First, the term of service of the seamen was at an end when the ship reached a port of safety after the expiration of the period of 6 months from the date of the contract; second, the action of the defendants did not constitute an endeavor or a conspiracy to commit a revolt, within the meaning of the statute, and therefore the evidence did not sustain the charge of the first and second counts; third, the statute does not make a combination or conspiracy to neglect and refusal to perform proper duty on board the vessel a criminal offense.
Was there a failure of evidence from which a reasonable inference of endeavor to make a revolt or conspiracy to revolt could be drawn? Section 293 of Penal Code (Compiled Statutes, § 10466) defines revolt:
“Whoever, being of the crew of a vessel of the United Státes, on the high seas, or on any other waters within the admiralty and maritime jurisdiction of the United States, unlawfully and with force, or by fraud, or intimidation, usurps the command of such vessel from the master or other lawful officer in command thereof, or deprives him of authority and command on board, or resists or prevents him in the free and lawful exercise thereof, or transfers such authority and command to another not lawfully entitled thereto, is guilty of a revolt and mutiny, and shall be fined not more than two thousand dollars and imprisoned not more than ten years.”
Section 292 of Criminal Code (Act of 1835, Compiled Statutes, § 10465), under which defendants were indicted, provides:
“Whoever, being of the crew of a vessel of the United States, on the high seas, or on any other waters within the admiralty and maritime jurisdiction of the United States, endeavors to make a revolt or mutiny on board such vessel, or combines, conspires, or confederates with any other person on board to make such revolt or mutiny, or solicits, incites, or stirs up any other of the crew to disobey or resist the lawful orders of the master or other officer of such vessel, or to refuse or neglect their proper duty on board thereof, or to betray their proper trust, or assembles with others in a tumultuous and mutinous manner, or makes a riot on board thereof, or unlawfully confines the master or other commanding officer thereof, shall be fined not more than one thousand dollars-, or imprisoned not more than five years, or both.”
“An endeavor to commit a revolt may be complete, not merely by stirring up, encouraging, or combining with others oí the ship’s crew to produce a general disobedience of all orders, but also by stirring up, encouraging, or combining with any one or more of the crew to produce a deliberate disobedience to any one lawful order of the master or other officers.” United States v. Thompson, 28 Fed. Cas. 102; United States v. Cassedy, 25 Fed. Gas. 321; In re Simpson (D. C.) 119 Fed. 620; United States v. Lynch, 26 Fed. Cas. 1033; United States v. Forbes, 25 Fed. Cas. 1141; United States v. Nye, 27 Fed. Cas. 210.
It is true the Supreme Court in United States v. Kelley, 11 Wheat. 417, 6 L. Ed. 508 (1826), said the offense of endeavoring to commit a revolt—
“consists in the endeavor of the crew of a vessel, or any one or more of them, to overthrow the legitimate authority of her commander, with intent to remove him from his command, or against his will to take possession of the vessel by assuming the government and navigation of her, or by transferring tlieir obedience from the lawful commander to some other person.”
This definition does not include a combination of the entire crew to refuse obedience and the actual refusal of obedience to the master. But Justice Story, in United States v. Haines, 26 Fed. Cas. 62 (1829), held that such combination and co-operation did constitute an endeavor to commit a revolt, saying as to the language of the court in United States v. Kelley:
“In truth, I consider the definition given by the Supreme Court not to have been designed to have more than an affirmative operation; that is, to declare that such acts would amount to the offense, and not negatively, that none others would. I was one of the judges who concurred in the opinion given in tlie Supreme Court; and it was matter of utter surprise to me when I first learned that such a narrow interpretation of it as is now contended for had been contended for at the bar. I have reason to know that it was equally a surprise upon others of my brethren who concurred in that opinion.”
In United States v. Gardner, 25 Fed. Cas. 1258, decided later in the same year Judge Story again holds that proof of such combination and co-operation is sufficient. So it seems clear that the action of the defendants would have been an endeavor to commit a revolt, even before it was made clearly so by the act of 1835. Other cases touching the point, but not deciding it, need not be reviewed.
The trial judge charged the jury in effect that they must find as a condition of conviction that—
“Reasonable care bad been exercised by tlie master of tbe Poughkeepsie to determine whether she was in seaworthy condition.”
The defendants insist that the District Judge should have charged as requested by them:
“If the jury believe from the evidence that the voyage as described in the shipping articles was prolonged beyond the period of 6 months without fault on the part of the crew because of unseaworthy or defective condition of the ship with reference to her boilers, engine, propeller and other equipment and not because of unusually violent weather, then if the jury also believe from the evidence that at the expiration of the period of 6 months the said vessel was safely in port at Hamilton, Bermuda, then the accused were legally entitled to their discharge and were not legally compelled to obey any commands of the master or other officers of the ship after that time, unless the ship was in danger.”
We are not called on to determine the right of seamen, when the voyage is extended from any cause so much-beyond the stipulated time as that service to the port of destination would be oppressive; for the end of the voyage would have been only a few days beyond the 6 months mentioned in the articles.
Affirmed.