75 F. 900 | U.S. Circuit Court for the District of Southern New York | 1896
(charging jury). I have been requested,, gentlemen, to present to you a very considerable number of charges. Before doing so I shall say something upon the case in general and will return to those hereafter.
The case is an important one, because it involves an important principle having reference to our relation to foreign powers. The object of the series of laws, of which this is a part, was to prevent complications between this government and other nations. It. was intended to do this by making criminal such acts as are calculated to embroil us with other nations. Within five years after the adop
“The definitions of the lexicographers substantially agree that a military expedition is a journey or voyage by a company or body of persons, having the position or character of soldiers, for a specific warlike purpose; also the body and its outfit; and that a military enterprise is a martial undertaking, involving the idea of a bold, arduous, and hazardous attempt. The word enterprise is somewhat broader than the word expedition; and although the words are synonymously used, it would seem that under the rule that its every word should be presumed to have some force and effect, the word enterprise was employed to give a slightly wider scope to the statute.”
Further along the Court in quoting say again:
“If the persons referred to had combined and organized in this country to go to Cuba and there make war on the government, and intended when they reached Cuba to join the insurgent army and thus enlist in its service, and the arms were taken along for their use, that would constitute a military expedition, and the transporting of such a body from this country for such a purpose would be an offense against the statute.”
Again, the Court approves the charge of the Court below, in these words :
“Any combination of men organized here to go to Cuba to make war upon its government, provided with arms and ammunition, we -being at peace with Cuba, constitutes a military expedition. It is not necessary that the men shall be drilled, put in uniform, or prepared for efficient service, nor that they shall have been organized according to the tactics or rules which relate to what is known as infantry, artillery or cavalry. It is sufficient that they shall have combined and organized here to go there and make war on a foreign government, and to have provided themselves with the means of doing so.”
Still further, the Chief Justice in his own language states that:
“If they intended to stand together and defend themselves if necessary, the jury had a right under the circumstances stated to find that this was a military expedition or enterprise under the statute.”
How, Í have read these several passages, (and they are the most important that bear upon this point), to illustrate what I think all agree is the first requisite to constitute a military enterprise or expedition, namely, a combination of men having in view some military purpose and provided with means for effecting it. In this case we may as well transport ourselves down to the time of the landing of these men at Cuba, and from that point proceed backwards, because if you are not satisfied from this evidence that when they left the ship and went on Cuban soil they were there acting as a military expedition and constituted a military enterprise, there is nothing before which will amount to that. You have then to determine, first, whether the body of men that you find going upon this steamer and landing, in the way you have heard detailed in the evidence, were acting in concert, and in such a way that you feel constrained to find that they had organized and combined together to do as they did, having arms in their hands. I say that, because there is no dispute about it, there is no contradiction in the testimony and there is no reason to discredit the fact that the men went each with a rifle that had been given to him for himself, with the other bundles of rifles and the other ammunition which you have heard detailed; each armed with his rifle, with a revolver, so far as they would go around, with a cartridge box containing ammunition,
“We think that it does not admit of serious question that providing or preparing the means of transportation for snch a military expedition or enterprise as is referred to in the statute' is one of the forms of provision or preparation therein denounced. Nor. can there be any doubt that a hostile expedition dispatched from our ports is within the words ‘carried on from thence.’ The officers of the Horsa. were concerned in providing the means of transportation.”
In that case, however, the Supreme Court declared that the mate of the vessel was not responsible, for the reason that it appeared that he had no knowledge1 of the intention of the expedition and acted solely under the orders of the captain. There was testimony on the part of the defense to that effect, which was not contradicted. The Supreme Court therefore gave effect to that evidence by declar
With regard to Nunez, he, it appears, had charge of the cargo. It is for you to say whether, the distribution of the arms that was made there was made in any way against his intent or against his expectation, or whether the irresistible inference is that it was in accordance with his expectation and arrangement.
As regards Mr. Hart, he was the owner, the managing owner I should say, of the vessel, arranging as such her voyage, providing her master and, as is shown, watching personally more or less the details about the sailing, and in communication with the master up to the last moment before she sailed. If he knowingly provided this vessel for the purposes of this transportation, and if you find that this transportation, as I have said, was not simply a commercial transportation of merchandise, or a transportation of passengers individually on their own account, but he knew that it was designed for the transportation of an organized or combined body of men intending to act together, in a concerted military way and with arms'; if he knew that, and the vessel was sent out and planned for that, Mr. Hart is responsible for it.
I come now to these requests to charge. They are somewhat numerous, and I have made, as shortly as possible, a general statement. I shall have some few comments to make, as I proceed, upon these various requests, which I suppose I am bound to consider .seriatim. ■ •
First, I charge as requested, that it is not a crime or offense against the laws of the United States, under the neutrality laws of
Second, as I am asked, I charge, that persons desiring to enlist in foreign military service may lawfully go abroad for this purpose in any way they see fit, either as passengers, by a regular line steamer or by any steamer bound for the desired destination, by chartering a steamer, or in any manner they choose, either separately or in association for the purpose of facilitating transportation. T say this provided they do not form or set on foot any military expedition or enterprise, or procure or prepare the means therefor.
As requested I also say that it is no offense against the laws of the United States to transport persons intending to enlist in foreign military service out of this country and land them in such foreign country — under the same qualifications as I have just stated.
It is no offense aga'inst the laws of the United States, to transport arms, ammunition, and munitions of war from this country to any foreign country, as merchandise only, if not designed in aid of a military expedition from this country, whether they are to be used in war or not. In such case, the shipper and transporter of the arms, ammunition and munitions of war only run the risk of capture and seizure of such arms, etc., by the foreign power against whom they are intended to be used.
As requested I also state, with modifications, as follows: that it is no offense against the laws of the United States to transport persons intending to enlist in foreign military service, and arms and munitions of war on the same ship, provided they are not a part of, and are not in aid of, any military expedition or enterprise set on foot in this country. In such case the persons transported and the shipper and transporter of the arms and munitions of war only ran the risk of capture and seizure of such arms and munitions by the foreign power against whom the arms were; to be used and the persons transported intend to enlist.
Again, I charge that inasmuch as it is legal and lawful to transport men and munitions of war to the scene of belligerent operations, under the conditions above stated, and those engaged run the risk of capture, secrecy and mystery in the conduct of the business are lawful, as a protection from surprise and capture.
Again, the shipping of the arms at Kcw York, receiving the boats off Chintogeague, and taking on the passengers off Tuckahoe or other acts done in the furtherance of secrecy do not necessarily and in and of themselves give an illegal character to the enterprise.
Mystery and secrecy in the conduct of the voyage are inconclusive —are as consistent with a lawful as with an unlawful enterprise.
In regard to these three last requests I add a word or two in explanation; that inasmuch as the object, as the transportation of passengers and merchandise in a perfectly lawful way would be accompanied with danger, therefore it is only the part of prudence in those who would wish to conduct a perfectly lawful enterprise to be cautious, careful and to take all the means of secrecy possible to prevent the anticipation and thwarting of the enterprise in this country by the Spanish powers. Therefore the mere fact of secrecy or mystery
I am further requested to charge that in regard to the clearing of' the Bermuda for Yera Cruz and the false oath, which seems to have been taken by the master, he is now only to be tried on the indictment before us, and not for any other alleged violation of law. That of course you understand. A false oath is in itself an independent crime. He is not on trial for that. The weight of that circumstance before you is simply the weight of any other circumstance of secrecy or endeavor to hide the object of the Bermuda when she left New York. That is, whether this was given in pursuance or in furtherance of what might be legal, or whether to aid an illegal enterprise, it is not determined by that circumstance.
I am also asked to charge that the fact that the Bermuda sailed from New York with a cargo of arms and munitions of war, and. afterwards, off the New Jersey coast, took on board' a number of unarmed men, is not alone sufficient to justify a conviction, even if the arms were intended for use by the Cuban army and the men intended to’ enlist in that army on arrival. That I charge, but only with the provision that you find that there was no combination or organization of the men to act together, in any military way, before joining the Cuban army. If you find that, then the mere fact that they took the men on board off Ocean City, as passengers, that they took arms on board to be transported as merchandise, those facts alone, without the other, would not constitute an offense. In saying this I only repeat, so many times over, that the essence and substance of this whole charge depend on whether you find that there was a combination or concert of action or organization among these men to act together, to stand together, for the purpose of effecting .their landing in Cuba and reaching the Cuban army. The expedition from this country, the unlawful expedition, the military expedition referred to in the statute, is not their fighting in Cuba when they get there, but is in the means taken to join the Cuban army and the manner of doing it.
“The fact that (the men and arms having a common destination) the men undertook the transportation of the arms, opened the packages and arranged the contents for convenient carriage, does not alone constitute them a military expedition;” — I am requested to charge that and I cannot pass over this request. It is very ingeniously worded. I say that it would be barely possible that men might land, that they might carry muskets, that they might handle
I am further requested to charge, and do charge you, that unless che jury are satisfied beyond a reasonable doubt that at the time the men left this country there was a combination of the men for- a military purpose with the understanding and intention that they should become a military body before reaching the scene of action, their verdict must be for tire defendants. I so charger; but I add that if you find there was such a combination, and that the men lauded with arms from the Bermuda and intended to stand together and defend themselves if necessary, you are authorized to find that this was a military expedition or enterprise carried on from this country.
Again, I am asked to charge that even if the jury are satisfied beyond a reasonable doubt that, before starting, there was a combination by the men, who embarked on the Bermuda, for a military purpose with the agreement and intention that they should become a military body before reaching the scene of action, still their verdicis must he for the defendants, unless they shall also he further satisfied beyond a reasonable doubt that the defendants knew of such combination, agreement and intention before the ship sailed. In substance I say “Yes” to that request; but it is only necessary ihat the defendants shall have known of the general plan, not of the specific acts which may have been done; under it; and “if you are satisfied beyond reasonable doubt that there was such a combination, for the purposes above stated, still the defendants are not liable unless they knowingly and intentionally provided ( lie means for transportation, or equipping it before tlie Bermuda sailed.” That is the same in substance as I have said before.
Again, “if without previous combination, agreement and intention, the men taken on board the Bermuda, after embarkation, organized themselves into a military body and supplied themselves with arms from the cargo, without right, and contrary to the previous intention or expectation or arrangement of the defendants, then your verdict must he for the defendants”; because upon this hypothesis, the defendants would not he privy to these acts.
I think I .have already in substance said that “if the facts proved are as consistent with a lawful as with an unlawful purpose, act or intention, the presumption of innocence must prevail, and the verdict must, be for the defendants.
“The burden is upon the government to exclude by proof every reasonable hypothesis consisient with innocence. In other words, you must give the defendants the benefit of every reasonable doubt.”
There are a few other requests to charge by the defendant Nunez separately:
“It is not a crime or offense against the United States for individuals to leave this country with the intent to enlist in foreign military service, nor is it an offense against the United States to transport persons out of this country and to land them into foreign countries, even though such persons have the intention to enlist in foreign armies.”
“It is no offense against the laws of the United States to transport persons intending to enlist in foreign armies, and arms and munitions of war on the same ship; in such case the persons transported and the shipper and transporter of the arms run the risk of seizure and capture by the foreign powers against whom the arms were to be used, and against whom the persons and passengers intended to enlist; but such cause would not constitute an offense against the laws of the United States, and for such cause the defendants cannot be found guilty, unless you find that there was a combination to engage in military acts and to act in a military way before they reached the insurgent army.”
“Before the jury can find the defendants guilty under this indictment they must first find that there was a military expedition or enterprise against the territory of the King of Spain. A military expedition or enterprise does not exist unless there is a combination or organization of some kind, for some kind of military and hostile operation, and it is the duty of the government to satisfy you beyond a reasonable doubt that such a combination or organization was effected or planned in the United States, and that the defendants had knowledge of such an intended combination and provided means for transporting it to Cuba.”
“The defendants cannot be convicted under the indictment in this case for any new and independent act performed on the Bermuda after the vessel reached the high seas beyond the three mile limit from the shores of the United States, or for any independent act that was not performed within the Southern District of New York; provided such acts were neither designed nor expected nor contemplated by the defendants. They are responsible for the acts done on the Bermuda in pursuance and fulfillment of the previous plans and expectations of the defendants.
“It is the duty of the government to prove to the jury beyond a reasonable doubt that the offenses alleged in the indictment, or one of them, were committed by the defendants within the Southern District of New York, and if the proof fails in this respect the defendants must be acquitted.
“If the jury find that the circumstances relied on to show guilt are as compatible with the theory of innocence, or of an innocent undertalcing, as with the theory of a prohibited.undertaking, it is the duty of the jury to find the defendants not guilty; and the very fact that the circumstances are compatible with an innocent undertaking make a situation of doubt and reasonable doubt the benefit of which must be given to the defendants.
“Merely landing men and arms and ammunition in Cuba, contrary to and in disregard of the laws of Spain, would not be an offense against the laws of the United States, and for such act these defendants, or either of them, could not be convicted under the indictment in this case, unless they have formed a military enterprise or expedition in the sense which I have stated.
“The defendants are entitled to the benefit of all reasonable doubt that may arise on the evidence or the circumstances of the case; and if such doubt exists upon the whole evidence, the defendants must be acquitted, and the verdict of the jury must be not guilty.”
On the part of the government—
MR. MACFARLANE: In regard to those requests I am satisfied your Honor has covered them. I am satisfied with your charge in that respect; hut if it is now time I will ask, instead of those re
THE COURT: You mean the evidence?
MR. MAGUARLA NE: Yes, that is the theory upon which these requests are drawn.
THE COURT: Yes. Now gentlemen, the weight that you are to give to the testimony of the different witnesses in this case must depend upon your appreciation of their fairness and their apparent truthfulness. Some comment has been made upon some supposed differences of statement. They have not seemed to me to be very important. They may seem important to you. That is a matter for you to determine. But one rule of law I will state to you, that if you find that either witness has deliberately told a falsehood, deliberately misstated a material circumstance, then you are entitled to disregard that witness’ testimony altogether unless yon find it corroborated by some facts or circumstances to satisfy yon of its correctness. Yon are the judges of the credit to be given to the witnesses; and in judging of it you will judge by their apparent manner, by their apparent candor, (heir apparent intelligence, their mode of testifying, under cross-examination as well as on direct examination, and the consideration of motives, if you find any motives, on tire part of either of the witnesses to color the testimony or to give any impression different from the actual truth. And in making up your minds as to what was the character of this expedition, and also as to what knowledge either of these defendants had about it, it is not one single circumstance alone in such cases that goes to make up the judgment, but it is all; and particularly in those matters which bear upon the question of knowledge and intention it is your duty to take into consideration all the circumstances and the whole sequence of events. Parts of an enterprise which fit into each other do not come about by accident. Opportunities and accidents may be availed of; but yon are generally able to understand perfectly when a use is made of an accidental opportunity, and to distinguish between that and such a successive order of events as shows prearrangement and concert. It is in that view that you will judge of this case as a whole.
I think that, gentlemen, is all that I need to say; cautioning you only at the last in regard to the performance of your duty, that you do not permit any sympathies to stand against the evidence in the case. Several of you on the examination of jurors staled your sympathies in general with the Cuban insurgent cause. It is tbe right of every individual; and in the case of a struggling community, our sympathies are naturally given to the weaker side, particularly if there seem to be considerations of justice or equity that favor it. We owe, however, our primary duty to our own conntry? and to the
MR. RUBENS: I except to that portion of your Honor’s charge in which you say Nunez appears to have had charge of the arms, and I ask your Honor to charge the jury that they are to decide that question, whether or not he did have charge of the arms.
THE COURT: Undoubtedly. If I have expressed any opinion at any point, on this evidence, it is to be taken with the knowledge that it is for you alone to determine all questions of fact. In the clause to' which exception has been taken — -I don’t recall it at this moment, but I presume I had reference to the testimony as to what Nunez did in directing when the discharge of arms should stop, and what should he done with the remainder. You remember that evidence, and you will give it such consideration as yon think it deserves, and place no weight upon any suggestion of mine in that regard.
The jury then retired.
MR. RUBENS: We except to the refusal of your Honor to charge each and every request as stated without modification.
MR. LEWIS: We take the same exception.
The jury were unable to agree.
