27 F. Cas. 1325 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1825
(charging jury). 1. That upon the facts stated by the captain, if believed by the jury, both of the offences charged in the indictment were proved. That the captain was confined upon the deck by the hold taken of him in the first rencontre, and afterward by presenting the pistol at his breast in the cabin, and thereby preventing him, for a time, from going upon deck. And that the latter act amounted to an assault with a dangerous weapon.
2. It has been objected, by the counsel for the defendant, that the evidence being that the alleged offences were committed in the port of St. Domingo, and not in the outer road, off the port, as laid in the indictment, the latter was not supported, and consequently that the verdict must be for the defendant. This objection, in the opinion of the court, cannot avail the defendant, see Chit. Cr. Law, 184-241. Where place or time is material, and enters into the substance of the description of the offence, there it must be precisely laid and proved. So if a scienter be laid, when it forms no part of the offence, or it be laid to be feloniously done when the act is not felonious, neither need be proved. Ohitty, in his first volume of Criminal Law, 241, after having stated with what seeming accuracy time, place, sums, magnitudes, quantity, and value must be described in the indictment; sums up the whole doctrine by observing, that a variance in the evidence from those points will never be material, unless the essence, or degree of the offence consists in their correctness. Now it has been decided that the offence of confining the master may be committed in port, as well as on the high seas, and such is the manifest construction of the twelfth section of the crimes act of 1790 [1 Stat
