27 F. Cas. 1128 | U.S. Circuit Court for the District of Massachusetts | 1855
To sustain the first count under the third section of the act of congress of March 3, 1835, (4 Stat 776), it is necessary for the government to prove that Sweeney was one of the crew of the Tigris. Upon the facts, which are admitted, my opinion is, he was not one of the crew. He was not on board under any contract to serve as a seaman, nor was he in fact a seaman. His presence there was a fraud, and if the master, from motives of humanity, chose to feed him, and at the same time, as a condition for his having food, required him to do such work as be was capable of doing, and he chose to work in order to get food, this did not amount to a contract of hiring him as one of the crew. This count in the indictment, therefore, is not supported.
But whether one of the crew or not, if the mate assaulted him with a dangerous weapon, he is guilty of an offence under another act of congress of March 3, 1825, ? 22 (4 Stat. 121). It is of the substance of this offence, that the assault be with a dangerous weapon. I am not aware that the words “dangerous weapon” in this act of congress, have received an interpretation. I think the damage referred to is danger to life. The offence intended to be described, appears from the punishment prescribed, to be a very serious one. The punishment is of the same duration, as for manslaughter. Act April 30, 1790, § 12 (1 Stat. 115). And the fact that the assault is with a dangerous weapon, is classed by the law, with an assault with an intent to kill; for an assault with a dangerous weapon, and an assault with an intent to kill, each amounts to the offence punished by this act. You will consider that, to support this count, the assault must be with a weapon dangerous to life. I think, also, that as actually used, the weapon must have been dangerous to life. Thus a small pistol, when loaded, is undoubtedly a dangerous weapon; and if pointed towards a person within striking distance, with a present intention of discharging it, an assault with a dangerous weapon is committed. But if not loaded, and used only to push, or strike with, a small pistol could not be considered a weapon dangerous to life. So the thing said to be used by the defendant may, in the band of a strong man, be capable of endangering life by a blow on the head; but not dangerous to life, if the arm or leg be struck with it. And if it be so, then an assault on a person, by striking at, or attempting to strike at his head with this instrument, being within striking distance, would be an assault with a dangerous weapon; while an attempt to strike his arm with it, would not be such an assault. In many cases it is practicable for the court to declare, that a particular weapon was, or was not, a dangerous weapon, within the meaning of the law. And when it is practicable, it is matter of law, and the court must take the responsibility of so declaring.
Verdict, not guilty.