26 F. Cas. 826 | U.S. Circuit Court for the District of Massachusetts | 1820
On the point of law. the court does not entertain any kind of doubt. It is admitted that this court has jurisdiction, if the crime was committed on the high seas. It is admitted, also, that the port of New York lies contiguous to the- sea, and that the moment a vessel sails without the exterior limit of that port, she is on the high seas. The words of the statute are. that no citizen, &c. or any other person, &c. shall “cause any such ship or vessel to sail from any port or place whatsoever.” within the jurisdiction of the United States, &c. It is clear to us, that the word "from," is here exclusive of the port; and if the vessel had never sailed out of the port, no crime would have been committed within the purview of the statute. The terminus a quo is the boundary line of the port, and when the vessel passes from that, she sails from the port, and is on the high seas. Many analogous cases have been decided in this court.
A verdict of guilty was brought in against the prisoner. After which, a motion was made by the prisoner’s counsel, for a new trial, on the following grounds: Because the judge, who presided at the trial, and directed the jury, mis-direeted them in certain matters of law, and also neglected and omitted to direct them in certain other matters of law, that is to say, the said judge directed the jury that the offence charged against the prisoner in said indictment, was not committed in construction of law, until the vessel had -passed the limits of the port of Baltimore, and th^ said judge omitted to direct the jury, that the offence, if any, of the defendant, originated and was complete, immediately when the sails were raised, and the vessel was under way on the voyage; and that, if she sailed from a place within the port, the offence in point of law, was committed in the state of Maryland; and the judge omitted to direct the jury, that the government were bound to shew that the offence was committed out of the jurisdiction of any particular state, and that, if they had no evidence conclusive of the fact, they must acquit the defendant.
Mr. Hooper, in support of the motion. It is a principle of the common law. that every offence shall be tried by a jury of the vicinage. The place where the act is alleged to be done, is the place where it should lie tried. This is the rule, not only of the English law, but of our own state and national laws. The rea-sou of it is plain, and it applies with great force to the present case. Oould the prisoner have been tried in Baltimore, or could he now be tried there, he would not have been destitute of the necessary papers and witnesses which he has been unable to procure here. The court will, therefore, be solicitous to afford him the privilege of a new trial, if any legal grounds can be shown in support of his claim to it. The construction of the act by the court, in support of the jurisdiction, conforms, we think, neither to the popular or common sense meaning of the language, nor a technical exposition of the words. As the word from, may have various meanings according to its connection with other words and phrases, it becomes important to inquire. what, from the whole tenor of the statute. appears to have been the meaning of the legislature. They have made the fitting, preparing, &e. of a vessel in a port, for the purpose of procuring slaves, criminal. And why should they not attach the same importance to the sailing, or causing the vessel to sail, on the voyage within the port, as without the
A motion was also made in arrest of judgment, on the following among other grounds: (1) Because the statement in each of the counts, of the time when the said supposed offence was committed, is uncertain, repugnant, and entirely insufficient. (2) Because it is not stated, that the negroes and persons of color mentioned in the said indictment, were to be transported to any place in the United States, or the territories thereof, nor that they were free, and not bound to service or labor. (3) Because the words, persons of color, in the counts in said indictment, are material parts of the same, and are indefinite and unintelligible. (4) Because the names of the owner or owners of the said vessel, are alleged to be to the jurors unknown, when they were known or could be ascertained.
Other exceptions were also taken to the indictment, and commented on by the counsel for the prisoner; but were rejected without observation by the court, as not applying to the third count of the indictment, which was the only one relied on by the government.
Mr. Hooper, for the prisoner, contended on the first exception, that the statement in each of the counts, of the time when the said supposed offence was committed, was uncertain, repugnant, and entirely insufficient, and that this was a fatal objection. If there is any thing well settled, it is that the time, the year, and the day, of committing the alleged offence, must be precisely stated in every indictment. 2 Co. Inst. 318;
As to the second exception. It is not stated that the negroes and persons of color mentioned in said indictment, were to be transported to any place in the United States, or the territories thereof, nor that they were free, and not bound to service or labor. The law is clear, that it is not always sufficient to follow in indictments the words of the statute. 2 Hawk. P. C. c. 25, §§ 3, 71; Bac. Abr. “Indictment,” G. They must be stated with the addition of such things as are to be inferred from the act. Did the government intend to punish the transporting of negroes from Africa to a foreign port? Is there any thing in the statute expressly forbidding such traffic ? Is it not unusual to legislate on matters not done by our citizens, nor within our jurisdiction? If there be no express statute law, is not the inference a fair one, that the law was intended to apply to the bringing of them into the territories of the United States? Is not the drift of all other similar statutes against this latter traffic only? If such traffic as the indictment is framed to reach, be not against any express law, the inference is, that the law did intend only to forbid traffic carried on between Africa and the United States, and bringing into our territories, people of the above description. But if this be so, then it is necessary (even if there be no express words in the statute declaring this) to allege it in the indictment, and to bring the defendants not only within the letter, but the spirit, scope, and real intent of the law. Again. It is not stated that they were free. Who can know from the indictment that it was proved? Is it not necessary to show that they were not slaves legally bound to service before? Is it against our laws, to fit out a ship to bring from St. Domingo, or any other foreign port or place, slaves that have escaped from the Southern plantations in the United States?
As to the third exception. The words, persons of colour, in the said indictment, are material, and are indefinite and unintelligible. The words in the act are too vague; and where the statute is uncertain, no indictment can be founded on its words. U. S. v. Cantril, 4 Cranch [8 U. S.] 167. The exception is to the indefiniteness of material words. If the transporting, &c. of persons of colour, ■ is an offence, (and certainly the statute has endeavoured to make it so) then it was sufficient to shew on the trial, that such persons were transported. And it must now be presumed, that this was in proof as far as it could be, and that on such proof, the defendant was convicted. It does' not help the indictment, to allege the transportation of negroes also, for proof of either would support the indictment. It is of no consequence, that the legislature have used the phrase; for if they describe an offence in so imperfect and vague a manner, that it cannot be understood, no indictment founded on such description can be sustained.
In support of the fourth exception, 2 Hawk. P. C. c. 25, § 91, Chit 275, and 3 Camp. 264, were cited.
STORY, Circuit Justice. A motion has been made for a new trial in this case, upon the ground of mis-direction by the court in’ the opinion given at the trial, that the of-fence charged in the indictment could not be committed, unless the vessel sailed without the port of New York; and that “from the port,” in the statute, was exclusive of the port. We have heard nothing that has induced us to change our opinion; and it is conformable to the construction which similar words, in other penal statutes of the United States, have received from this, as well as from the supreme court. The only new case cited at the bar is that from 3 Co. Inst. 30, where Lord Coke is commenting ori the statute of 3 Jae. c. 4, which declares it a felony in every subject, “that shall go or pass out of this realm, to serve any foreign prince, &c. or shall pass' over the seas and there shall voluntarily serve any such foreign prince,” not having taken the oath of obedience, &c. He says, it had been objected, that the offences here stated could not be tried within the realm, because done out of the realm. But he answers that by a subsequent clause in the act, “all and every offence to be committed or done against the act,” is to be inquired, &c. at the assizes, or at the. quarter sessions, “to be holden within the shire, &c. where such offence shall happen.” So, he adds, by the meaning of the
A motion has also been made in arrest of judgment, upon the ground of alleged defects in the indictment. The list of supposed errors is indeed truly formidable. But whatever may be their validity and force in general, as to which we decide nothing, it will be sufficient for us to coniine our attention to the third count in the indictment, on which alone much stress was laid at the trial. If that count be good, it will be sufficient to warrant a judgment, even though all the others shall be totally defective. The first exception is. that the offence (viz. causing the vessel to sail from the port of New York) is alleged to have been committed “on the third day of January, now last past, and on divers days and times before and since the last mentioned day, and after the said 20th day of April, 1818;" whereas, it is but a single offence, and could be committed but on a single day, and should have been alleged to have been committed on a day and year certain, and not on divers days, or on a day now last past. In respect to the averment, it is certainly wanting in technical accuracy and precision, and departs from the settled forms of pleading. But if it have certainty to a proper intent, and can be sustained by the rules of law, we are bound to sustain it. though we cannot but lament, that it should have been so inartificially drawn. In our opinion, the words, “on the third day of January, now last past,” refer to the third day of January, last past, before the caption of the indictment, that , is to say, to the third day of January. A. D. 1820, and therefore are sufficiently certain. This conforms to the doctrine laid down in the better authorities. Hawk. P. C. bk. 2, c. 25. § 78; 1 Starkie, Cr. Pl. 51; 3 Bac. Abr. “Indictment,” G. 4; Com. Dig. “Indictment.” G, 2; 2 Hale, P. C. 177. As to the other objection, that the offence is stated to have been committed on divers days and times, it is sufficient to say. that as the offence is alleged to have been committed also on a day certain, if it be but a single of-fence, the words, "on divers days and times” may be rejected as insensible and surplusage. 1 Starkie, Cr. Pl. 235; Rex v. Redman, 2 Leach, 536; Rex v. Morris, 1 Leach, 109. If the offence might have been committed on divers days and times, the allegation in this respect is too uncertain to warrant a judgment for such times; but this does not prevent a judgment for one offence, which is stated to be committed on a day certain. Hither way, then, the objection is not fatal. Hawkins puts an analogous case; if an indictment charge a man with having done a nuisance, such a day and year, ¿te. and on divers other days, it is void only as to the facts on those days, which are uncertainly alleged, and effectual for the nuisance on the day specified. 2 Hawk. P. C. bk. 2. c. 25, § 82. So in Rex v. Dixon, 10 Mod. 335. 1 Starkie, Or. Pl. 52. the indictment charged, that they on such a day, and on divers other days and times, &e. as well before as after, ¿te. kept a common gaming table. On demurrer, the court held, that the time was uncertain as to all but one day, and that judgment could only be given for a single penalty. The rule is, that if an indictment be uncertain as to some particulars only, and certain as to the rest, it is void only as to those, which are uncertainly expressed. and good for the residue. 2 Hawk. P. C. bk. 2, c. 23, § 74. In the Case of Lord IVintown. too. it seemed admitted by the counsel on both sides, that even in an indictment for high treason, if a day certain were stated, as well as diversis diebus, it would be good.
There are some other exceptions to the third count, which apply in common to the other counts; such as that the indictment does not charge, that the negroes and persons of colour were to be transported to the United States, or the territories thereof; or that they were free and not bound to service; or that the defendant was a citizen or resident within the United States; or that the offence was committed on board an American vessel. It is a sufficient answer to all these objections, that the indictment in these respects follows the language of the statute, and no more certainty is in general required in cases of this sort. Exceptions there may be; but this ease falls not within them. Hawk. P. C. c. 25, § 3. The offence may be committed, although the negroes are not to be transported to the United States, or their territories: and the causing of any vessel to sail from any port within our jurisdiction, for the purpose of being engaged in the slave trade, may be an offence against the statute, although such vessel be a foreign vessel, and the defendant be not a citizen or resident. But if it be otherwise, this as well as the other points stated in the exception are matters of defence, and are not necessary to be averred ot negatived in the indictment. Another exception is, that the phrase, “per-sous of colour," is too indefinite and is unintelligible. It has, however, acquired quite as definite a meaning as negro, mulatto, &c.; and at all events is the chosen phrase of the statute, which we cannot reject, and the indictment is not bound to avoid or to define it. Another exception is, that in the third count the name of the owner of the vessel is alleged to be unknown, when he was known, or might have been ascertained. The indictment charges, that the defendant did, “as master, for some other person, the name whereof being to the jurors yet unknown, cause a certain vessel, called the Science, to sail from a port within the jurisdiction of the United States. &c." Now there is no pretence to say, that if the averment were material, the indictment might not so allege it, if such were the fact. 2 East. P. C. 651, 781; 1 Starkie, Or. Pl. 173. All the authorities show that it would be. good under such circumstances. And if the case of Rex v. Walker cited from 3 Camp. 264, be supposed to assert, (what was certainly not the case before the court) that if the indictment conformed to the fact upon the evidence before the grand jury, and the certainty of ownership was made out only by the evidence subsequently given at the trial, it would be a fatal objection, we are not prepared to admit the doctrine to this extent: and we should choose to reserve our opinion until the case came In judgment before us. See 1 Starkie. Cr. Pl. 175, 176. But in no shape can this be a good objection in arrest of judgment, for the indictment is good, if the fact warrant it; and we may add. that there was no evidence at the trial, that tlae grand jury had not found the indictment according to the evidence before them. And it is at least questionable, whether the name of the person, known or unknown, for whom the act is done, is material to be stated in any indictment on the statute.
Allusion has been made to the subsequent averment in the third count, that the vessel had been previously fitted out, &e. by the owners for the slave trade. This whole averment may be. nay, must be rejected as sur-plusage. for it' constitutes no part of the of-fence charged in the preceding part of the third count, which is complete without it.
Upon the whole, the motions for a new trial and in arrest of judgment are overruled, and judgment will be pronounced against the defendant. the third count being in substance, though not technically accurate.