delivered the opinion of the Court.
This is the ease of an indictment against Gooding for being engaged in the slave trade, contrary to the prohibitions of the act of Congress of the 20th of April, 1818. It comes before us upon a certificate of division of opinions in the Circuit Court of the District of Maryland, upon certain points raised at the trial. We take this opportunity of expressing our anxiety, least, by too great indulgence to the ‘wishes of counsel, questions of this sort should be frequently brought before this Court, and thus, in effect, an appeal in
The first question that arises is upon the division of opinjons whether, under the circumstances of the case, the testimony of-Captain Coit to the facts stated in the record, 'was admissible. That testimony was to the following effect: that he, Captain Coit, was at St. Thomas while the General Winder was at that island in September, 1824, and was frequently on board the vessel at that time; that Cap - tain Hill, the master of the vessel, then and there proposed to the witness to engage on board the General Winder as mate for the voyage then in .progress, and described the same to be a voyage .to the coast of Africa, for slaves, and thence- back, to Trinidad de Cuba ; that he offered to the witness seventy dollars per month, and five dollars per head for every prime slave which should be brought to Cuba; that on the witness inquiring who would See the crew paid in the event of a disaster attending the voyage, Captain Hill replied, “ Uncle John,” meaning (as the witness understood) John Gooding, the defendant.
It is to be observed, that, as preliminary to the admission of this testimony, evidence had been offered to prove that Gooding was owner of the vessel, that he lived at Baltimore, where she was fitted out, and that he appointed Hill master, and gave him authority to .make the fitments for the voyage, and paid the bills therefor ; that certain equipments were put on board peculiarly adapted for the slave trade; and that Gooding had made declarations that the vessel had been engaged in the,slave trade, and had made him a good
We cannot yield to the force of the argument. In general the rules of evidence' in criminal and civil -cases are the same. Whatever the agent does, within the scope of his authority, binds his principal, and is deemed his act. It must, indeed, be shown, that the agent has the authority, and that the act is within its scope; but these being ceded, or proved, either by the course of businesá, or by express authorization, the same conclusion arises, in point of law, in both cases. Nor is there any authority for confining the rule to civil cases. On the contrary, it is the known and familiar principle of criminal jurisprudence, that he who commands, or procures a crime to be done, if it is done, is guilty of the crime, and the act is his act. This -is so true, that even the agent may be innocent, when the procurer or principal may be convicted of guilt, as in the case of infants, or idiots, employed to administer poison. The proof of the command, or procurement, may be direct or indirect, positive or circumstantial; but this is matter for the consideration of the jury, and npt of legal cpmpetency. So, in cases of conspiracy and riot, when once the conspiracy or combination is established, the act of one conspirator, in the prosecution of the enterprise, is considered the act of all, ánd is evidence against all. Each is deemed to consent tó, or command, what is done by any other in furtherance of the common object. Upon the facts of the present case, the master was just as much a guilty principal as the owner, and just as much within the purview of the act by the illegal fitment.
The evidence here offered „<*» not the mere declarations
The other questions arise from the instructions or opinions prayed for by the defendant at the trial upon matters of law, upon which, also, the judges were divided in opinion.
The' first instruction prayed puts the point, whether the burthen of proof of the offences charged in the indictment , r . ° . . pid not rest upon the United States. Without question it does in all cases where a party stands charged with an of-fence, unless a different provision is made by some statute ; for the general rule of our jurisprudente is, that the party accused need not establish his innocence ; but it is for the government itself to prove his guilt before it is entitled to a verdict or conviction. This question has been abandoned at the argument here, and is too plain for controversy, since there is no.slatuteable provision altering the general principle in this particular.
The second instruction is conceived in very general terms, so general, indeed, that it cannot be supported if it is to be understood in its obvious sense. It asks the Court to instruct the jury that evidence that the defendant caused the vessel to be fitted out by Captain Hill,
or any one
else, will not support. the first count in the indictment, in which the defendant is charged with fitting her out himself. This obviously covers the case where the fitting out is by the instrumentality of any other persons, how ever innocent of his design, even though the defendant himself should be personally present, either really or constructively, and superintending the whole operations. To this extent it is clearly unmaintáinable. But, in a more restrictive sense, it involves the question, whether, evidence that the owner commanded, authorized and superintended the fitment through his agents, without his personal presence, would support this count. Wé are of opinion in the affirmative. The act of Congress does not require that the fitting out should be by the owner personally, without the assistance or agency of others. ■ The act itself is of a nature which forbids such a supposition. The fitment of a vessel is ordinarily, and, indeed, must be' done through the instrumentality of others. It is not a single-act; but a series of subordinate operations, requiring the cooperation of persons in various trades and arts, all conducing to the same end. It would be against the plain sense of the
The third instruction turns upon the point, whether the fitting out, in the sense of the act of Congress, means a complete equipment, so that a partial equipment only will extract the case from the prohibi tions of the statute. This objection appears to us to proceed from a mistaken view of-the facts applicable to the case. If the vessel actually sailed on her voyage from Baltimore for the purpose of employment in the slave trade, her fitment was complete for all the purposes of the act. It is by no means necessary, that every equipment for a slave voyage should have been taken on board at Baltimore; or, indeed, that any equipments exclusively applicable to such a voyage, should have been on board. The presence of such equipments may furnish strong presumptive proof of the object of the voyage, but they do not constitute the offence. The statute punishes the fitting out of a vessel with inteat'to employ her in the slave trade, how-, ever innocent the equipment may be, when cfesigned for a lawful voyage. It is the act combined with the intent, and not either separately, which .is punishable. Whether the
But we are also of opinion, that any preparations for a slave voyage,'which clearly manifest or accompany the illegal intent, even though incomplete and imperfect, and before the departure of the vessel from pert, do yet constitute a fitting out within the purview of the statute. This was held by this Court upon full consideration in the cases of the Emily and Caroline, (9 Wheat. Rep. 381.) and the Plattsburg, (10 Wheat. Rep. 133.) Those cases, indeed, arose upon the construction of the slave trade acts of 1794, 1800 and 1807-; but the language of those acts is almost literally transcribed into the statute of 1818, and the construction adopted therein must govern the present jase. In either view, therefore, Our answer to the third prayer is, that a complete equipment is not necessary to be proved, but any partial preparation, which demonstrates or accompanies the illegal intent, will bring the case within the statute, and support the charge in the first count of the indictment.
The fourth instruction respects the sufficiency of the averments of the first count; and it is contended that there ought to have been a specification of the particulars of the fitting oütj and that it is not sufficient to allege the act itself without them. • The indictment, in this respect, follows the language of the statute, and is as certain as that is. We cannott0
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, perceive any good reason tor holding the government to any greater certainty in the averments of the indictment. The fitting out of a vessel may, and must, consist of a variety of minute acts and preparations, almost infinite in their detail, and the enumeration would answer no valuable purpose to the defetídant to assist him in his'defence, and subserve ño public policy. The fitting out of a vessel is a sort of business, which is as clear and definite as any other; and we might just as well'in an indictment upon the act for building a ship with the illegal intent, require that' the government
In general, it may be said, that it is sdfficient certainty in . '. ,. .. , „ ,, ,, m an indictment to allege the offence m the very terms ot ^1® balite. We say, in general, for there are doubtless cases where more particularity is required, either from the obvious intention of the legislature; or from the application of known principles of law. At the eornmdn law, in certain descriptions of offences, and especially of capital offences, great nicety and particularity are often .necessary. The rules which regulate this branch of pleading were sometimes founded in considerations which no longer exist either in our own or in English jurisprudence ;buta rule, being once established, it still prevails, although if the case were new, it might not now be incorporated into the law. So, again, in.certain classes of statutes, the rule of very strict certainty has sometimes been applied where the common law furnished a close and appropriate analogy. ■ Such are the cases of indictments for false pretences, and sending threatening letters, where the pretences and the letters are required to be set forth from the close analogy to indictments for perjury and forgery. Courts of law have thought such certainty not unreasonable or inconvenient, and calculated to put the plea of autrefois acquit, or convict, as well as of general defence at the trial, fairly within the power of the prisoner. But these instances are by no means considered as leading to the establishment of any general rule. On the contrary, the. course has been to leave every class of cases to be decided
very much upon its own peculiar circumstances. Thus, in .cases of conspiracy, jt has never been held necessary to set forth the overt acts or means, though these might materially' assist the prisoner’s defence. So. m cases of solicitation to commit crimes, it has been held sufficient'to state the act of solicitation, without any averment of the. special means. And in endeavours to commit a revolt, which is by statute in England made a capital offence, it has always been deemed sufficient to allege the offence in the words of the ¡Statute, ■ without setting forth any particulars of the manner or the means. These cases approach very near to the present; and if any, by way of precedent, ought to govern it, they well may govern it. The case of treason stands upon a peculiar ground; there the overt acts must, by statute, be specially laid in the indictment, and must be'proved as laid. The very act, and mode of the act, must, therefore, be laid as it is intended to be proved. If the party be only constructively a principal, as an absent and distant coadjutor or leader, it may be necessary to aver the fact accordingly. There is great good sensf in the rule which has been, laid down, that where the offence'is made up of a number of minute acts, which cannot be enumerated upon the record without great prolixity and inconvenience, and the danger of variance,' they ought to be dispensed with. The present case is a fit illustration of the rule; the fitting out is a compound of various minute acts, almost incapable of exact specification.
The fifth instruction turns upon a doctrine applicable to principal and accessory in cases of felony, either at the mon law or by statute. The present is the case of a misde-. meanour, and. the doctrine, therefore, cannot be applied to it; for in cases of misdemeanours, all those who are ..... . , ■ ,1 . . cerned in aiding and abetting, as well as m perpetrating the act, are principals. Under .such circumstances there, is room for the question of actual or constructive presence or absence ; for whether present or absent, all are principals. They may be- indicted and punished accordingly. Nor is the. trial or conviction of an actor indispensable to furnish a right to try the person who aids or abets the act; each in the eye of the law is deemed guilty as a principal. It' the
The sixth instruction is that which has presented the most difficulty. It embraces two propositions; the first is., that the second, fifth, and sixth counts in the indictment, ought to have contained an averment that the vessel was built, filled out, &c. within the jurisdiction of the United Slates •, the second is, thát the fifth and sixth counts do not allege the offence in the words of the statute, those words being,
11 mithinient to employ the vessel”
in theslave trade,&c. whereas each of these counts avers, “ with
intent that the said vessel should be employed”
in the slave trade, which imports a very different state of facts. In order to understand these ex-eeptions, it is necessary to attend carefully to the very words of the act of Congress. The second section enacts, s* that no citizen or citizens, &c. shall, after the passing of this act as aforesaid, for himself, themselves, or any other person or persons whatsoever, either as master, factor, or owner, build, fit, equip, load, or otherwise prepare, any ship or vessel, in any port or place within the jurisdiction of the United States, nor cause any
such
ship or vessel to sail from any port or place whatsoever within the jurisdiction of the same, for the purpose of procuring any negroes, &c. to be transported, &c. as slaves.” The third section enacts, “ that every person or persons so building, fitting out, equipping, loading, or otherwise preparing, or sending away, or causing any of the acts aforesaid to be done, with intent to employ
But it.is sufficient to say, that the word “ such” has an appropriate sense, and can be reasonably referred only to the ship or vessel previously spoken of; and such ship oy‘ vessel is not merely one built, fitted out, &c. but one built, fitted out, &c. in a port or place within the United States. The whole description must be taken together. If we were to adopt any other cónstruction, we should read the words as if “ such1’ were struck out, and the clause stood, ¥ any ship or.vessel.” Such a course would not be defensible in •.cpnstruing a penal statute. It is remarkable, that m the Slave T-rade Acts of 1794, (2 ü. S. L. 383.) and of 1807.
(4 U. S. L. 94.) the word “ such” is omitted, and seems to have been introduced into the act of 1818, ex industria. We must take the law as we find it, and, upon examination of its language, we are of opinion, that this exception is well taken. The cases of the United States v. Lacoste, (2 Mason’s Rep. 129.) and The United States v. Smith, (2 Mason’s Rep. 143.) have been cited at the bar as captaining a different opinion expressed in the Circuit Court in Massachusetts. I owe it in ..candour to acknowledge, that the fact is so; but 1 have no recollection that the point was made at the argument; and I am confident that it never was insisted upon in the view which has. been presented by the argument in this-Court. My own error, however, can furnish no ground for its being adopted by this Court, in whose name 1 speak on the present occasion.
The other point is equally fatal. There is a clear distinction between causing a vessg) to sail, or to be sent away,' wjth intent to employ her in the slave trade, and with intent that she should be employed in that trade. The former applies to an intent of the party causing the act, the latter to the employment of the vessel, whether by himself • J, J . . , or a stranger. I he evidence may fully support these counts, and yet may not constitute an offeqce within the act of Congress; for the employment by a mere stranger would not justify the conviction of the party charged with causing her to sail, or to be sent away, with intent to employ her in the slave trade, as owner. There is no reason, in criminal cases, why the Court should help any such defective allegations. The words of the statute should be pursued..
It remains only to consider the point, whether these ob~ jecti°ns to the sufficiency of the indictment could be properly taken at this stage of the proceedings. Undoubtedly, ^
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according to the regular course, of practice, objections to form and sufficiency of an indictment ought to be discussed upon a motion to quash the indictment, which may be granted or refused' in the • discretion of the Court, or upon demurrer -to the indictment, or lipón a motion in arrest *
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of judgment, which are matters of right. The defendant has no right to insist that such objections should be discussed or decided during the trial of the facts by the jurv. It would . n - J "
A certificate will be sent to the Circuit Court of the District of Maryland, according to this opinion.
Certificate. This cause came on, &c. On consideration whereof, it is ordered and adjudged, that the following opinions be certified as the opinions of this Court on points of division to the Circuit Court aforesaid.
First. That the testimony of Peter L. Coit, set forth in the record, was, under the circumstances of the case, admissible as competent evidence against the defendant, Gooding.
Secondly. That the opinions prayed for by the counsel for the defendant, Gooding, in the first and sixth prayers, set forth in the record, were correct in law, and ought to have been given by the Court.
■Thirdly. That the opinions prayed for in all the other prayers of the defendant, were incorrect in law, and ought to have been refused.
Fourthly. That the objections taken to the form and sufficiency of the indictment by the defendant’s counsel, were not matters of right which the defendant might insist upon, and discuss, and require to be decided during the trial of the issue by the jury; and that the same should, according to the regular course of practice, have been discussed on a motion to quash the indictment, or on demurrer, or on motion in arrest of judgment; but that the Court had, never
Notes
See also 2 Stark. Evid. part.4. p. 403, 404