Hart v. United States

AGHESON, Circuit Judge

(dissenting). I am not able to concur in the views expressed by the majority of the court, in this case, and must dissent from the judgment of affirmance. From the very foundation of the government, — both before and since the passage of our neutrality laws, — the right of citizens of the United States to sell to a.belligerent, or to carry to a belligerent arms and munitions of war, subject to the opposing belligerent’s right of seizure in transitu, and the right of our citizens to transport out of the country, with their own consent, persons who have an intention to enlist in foreign military service, have been firmly and steadily maintained by the executive department, and uniformly upheld by judicial decisions. Mr. Jefferson, secretary of state, to minister of Great Britain, May 15, 1793 (3 Jeff. Works, 558); Mr. Hamilton’s treasury circular of August 4, 1793 (1 Am. St. Papers [For. Rel.] 140); 1 Kent, Comm. 142; Richardson v. Insurance Co., 6 Mass. 101, 113; The Santissima Trinidad, 7 Wheat. 283, 340; Mr. Marcy, secretary of state, to Mr. Molina, March 16, 1854 (3 Whart. Int. Law Dig. p. 511); U. S. v. Kazinski, 2 Spr. 7, Fed. Cas. No. 15,508; The Florida, 4 Ben. 452, Fed. Cas. No. 4,887; opinions of Atty. Gen. James Speed, of December 23, 1865, and March 24, 1866 (11 Op. Attys. Gen. 408, 451); Atty. Gen. Akerman to Hamilton Fish, secretary of state, December 4, 1871 (13 Op. Attys. Gen. 541); U. S. v. Trumbull, 48 Fed. 99; The Itata, 49 Fed. 646; id., 15 U. S. App. 1, 5 C. C. A. 608, and 56 Fed. 505; U. S. v. Pena, 69 Fed. 983; Wiborg v. U. S., 163 U. S. 632, 652, 16 Sup. Ct. 1127, 1197. So pertinent to the facts of the present case is the opinion of Atty. Gen. Akerman, supra, that a portion of it may well here be quoted:

“Assuming the credibility of the sworn statements which he [the Spanish minister] has transmitted, I do not think that they prove against the Hornet any violation of the neutrality laws of the United States. They show that the Hornet conveyed from Aspinwall, to the coast of Cuba, men, arms, and munitions of war, destined to aid the Cuba insurgents. This proof, by itself, *806does not bring the vessel within the third section of the neutrality act of April 20,1818 (3 Stat. 448).'”

That this is a sound exposition of our neutrality laws is abundantly shown by the authorities. The Itata, 15 U. S. App. 39, 5 C. C. A. 608, and 56 Fed. 505.

The leading facts of this case, as shown by the record, are these: The defendant, John D. Hart, was the president of the J. D. Hart Company, which owned the steamship Laurada. This vessel was employed to carry to the Island of Havassa a large lot of arms and ammunition which had been purchased in the usual course of trade in the city of Hew York by a Mr. Eston, but with which purchase the defendant was not connected. The said arms and ammunition were carried in original packages upon a lighter from Hew York, and; .placed on board the Laurada off Barnegat, whither the Laurada wen* after she left the port of Wilmington, Del. At the same time about 18 men, whom the government's witnesses described as Cubans, went in a launch from Atlantic City, and joined the Laurada while she lay off Barnegat. These men assisted in transferring the cargo of arms and ammunition from the lighter to the Laurada, and then went with the Laurada on her voyage. The 18 men' came to Atlantic City by railway. They traveled on the same train, and arrived together. They were in citizen’s dress, and unarmed. There was evidence tending to show that the defendant had some control over the movements of the Laurada; took part in the shipping of her crew at Philadelphia, and in her sailing orders from that port; and also that he was present at Atlantic City when the 18 men arrived there, and that he participated in providing the launch which took them out to the Laurada. Here the defendant’s direct connection with this transaction terminated. It appears, however, that the Laurada proceeded to the Island of Havassa, and was there met by the towboat Dauntless. The cargo of arms and ammunition, still in original packages, was transferred in that form from the Laurada to the Dauntless, which proceeded therewith in the direction of Cuba. To transport the cargo required the Dauntless to malee two trips. The men who came on the Laurada from Barnegat put the first load upon the Dauntless, and went off with her. Some of these men returned with the Dauntless to the Laurada, but they did not assist in putting the second load upon the Dauntless. They complained that they were “broken down,” and procured the crew of the Laurada to do the second loading. The only thing the men who went on the Laurada from Barnegat are shown to have done in respect to the cargo of arms and ammunition was to perform the services of stevedores. There was no evidence that any of these men had enlisted in the United States for military service in Cuba, or that they" had ever been drilled in military tactics, together or singly. There was no evidence whatever that they had formed or were members of any military organization, nor was there any direct evidence that they were acting in a body for any purpose. The one solitary fact tending to show any “preconcert” of action on their part is that they came to Atlantic City in the same railway train, and took passage together upon the launch which carried them to the Lau-rada, their point of common destination. Certainly the defendant is *807not justly chargeable with knowledge of any other inculpating fact. The evidence as to what took place on board the Laurada after she left Ramegat was admissible, as I conceive, only as tending to show that this was a military expedition or enterprise, and not as bearing upon the question of the defendant's knowledge. The substance of this evidence is that the men who were carried by the Laurada opened the large boxes, and took out smaller ones, and stowed them in the hold, on each side of the vessel, under the direction of one of their number; that on one occasion a box of cartridges was opened, and the contents examined by one who was called “General Roloff,” and another, who was called “Captain,” but the box was then fastened up again; that the men had some canvas, out of which they made small sacks or bags, with a strap to fit one’s shoulders; and that several of the men said that “they were going to Cuba to fight, — to fight the Spaniards.” There was no evidence that arms were distributed among these men, or that they were drilled, or under military discipline. These 18 men left the Laurada, as they had boarded her, in citizen’s dress, and personally unarmed, so far as appears. The first mate, Rand, a witness for the government, testified:

“I never saw an arm, tlie wliole passage out, to my recollcclion. I did not see the men drilled or uniformed. I did not see them practicing with rifles or with cannons. I became acquainted with Gen. Roloff on board. He was lying down on the quarter deck, nearly the whole passage. 1 saw large boxes opened, and small boxes taken out. Those boxes had rope handles to them. They wore transferred to the Dauntless at Xavassa. When tlie goods were transferred from the Laurada to the Dauntless, they were still in those boxes.”

I cannot agree that the case of Wiborg v. U. S., supra, is decisive •here. How wide apart the two cases are upon the question of the existence of a “military expedition or enterprise,” the following extract from the opinion of Chief Justice Fuller (163 U. S. 654, 16 Sup. Ct. 1136) shows:

“It appears to us that these views of the district judge were correct, as applied to the evidence before him. This body of men went on board a tug, loaded with arms;' were taken by it thirty or forty miles, and out to sea: met a steamer outside the three-mile limit, by prior arrangement; hoarded her with the arms, opened the boxes, and distributed the arms among themselves; drilled to some extent; wore apparently officered; and then, as preconcerted, disembarked, to effect an armed landing on the coast of Ouba.”

The distinguishing features of the Wiborg expedition were lacking here. I am of the opinion that the evidence here did not justify a findiug that this was a military expedition or enterprise, within tlie ruling in Wiborg’s Case. In origin and purpose, these two enterprises differed essentially, as it appears to me. The adventure on which the Laurada entered was a commercial transaction, neither obnoxious to the law of nations, nor punishable by our municipal law. The Lau-rada was the carrier of a very large cargó of articles, contraband of war, destined, doubtless, for the use of the Cuban insurgents in their struggle to achieve independence; and on the same voyage she also transported, as she might lawfully do, even with knowledge of their intention to engage in military service abroad, 18 unarmed and ununi-formed men, who embark on the vessel, apparently, as mere passengers.

*808But even if it could be affirmed, in view of after developments, that this was a military expedition, within the prohibition of the statute, still, in my judgment, there was not sufficient evidence upon which to base a finding that the defendant had knowledge that such was the character of the enterprise. In its origin, and while the defendant had any personal connection with it, it was apparently a lawful adventure. It was then incumbent upon the government to furnish some evidence to show that the defendant knew the contrary. Such evidence I do not find. Upon the question of scienter, it must not be overlooked that this defendant's personal connection with the Laurada’s voyage ceased at Atlantic City, whereas Wiborg was the master of the Horsa, and was, of course, cognizant of everything that transpired, both when the men boarded her, and during the ensuing voyage. It is said that there were secrecy and mystery in the movements of the Laurada. Be it so. These things in themselves are not criminal, and in this instance do not indicate criminality. They are here consistent with entire innocency. The owners of the Laurada, dealing as carriers with contraband of war, had a perfect right to elude the vigilance of Spanish officials and agents, and avoid a seizure of the cargo on the high seas. It can, I think, confidently be affirmed that all the circumstances relied on to show the defendant’s guilt are compatible with his innocence. Now, it is a familiar rule in criminal cases that, to justify a conviction upon circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. 1 Greenl. Ev. § 13; Wills, Circ. Ev. 149. In Com. v. McKie, 1 Gray, 61, 62, the supreme court of Massachusetts, in discussing the doctrine of the burden of proof in criminal cases, used language which is apposite to the present case:

“If therefore, the evidence fails to show the act to have been unjustifiable, or leaves that question in doubt, the criminal act is not proved, and the party charged is entitled to an acquittal. » * * 'In the case supposed, if it is left in doubt on the whole evidence whether the act was the result of accident or design, then the criminal charge is left in doubt. * * * The defendant has a right to say that, upon the proofs so introduced, no case is made against him, because there is left in doubt one of the essential elements of the offense charged, namely, the wrongful, unjustifiable, unlawful intent.”

Here, as it seems to me, tbere was an entire lack of evidence to show guilty knowledge on the part of the defendant. I am not able to discover in this record evidence sufficient to sustain the conviction. I am of opinion that the defendant was entitled to an affirmance of his request for binding instructions in his favor.