United States v. Townsend

• Decision Date: 28 January 1915
• Docket Number: 2435.
• Parties: UNITED STATES v. TOWNSEND.
• Court: U.S. District Court — Southern District of New York

219 F. 761

UNITED STATES v. TOWNSEND.

No. 2435.

United States District Court, S.D. New York.

January 28, 1915

H Snowden Marshall, U.S. Atty., and Gordon Auchincloss, Asst U.S. Atty., both of New York City.

Henry A. Wise, of New York City, for defendant.

POPE District Judge.

The defendant, Townsend, is indicted for having, while master of the sailing vessel Manga Reva, and while upon the high seas on the trip from San Francisco to New York, committed an assault upon one John Shea, a member of his crew. The indictment is under section 291 of the Penal Code (Act March 4, 1909, c. 321, 35 Stat. 1145 (Comp. St. 1913, Sec. 10464)) which, so far as here material, reads as follows:

'Whoever, being the master or officer of a vessel of the United States, on the high seas, or on any other waters within the admiralty and maritime jurisdiction of the United States, beats, wounds, * * * any of the crew of such vessel,' shall be punished as provided by law.

The plea in bar, as elucidated by the mutually conceded facts at the hearing, shows that the defendant brought his ship upon the end of her voyage to her pier in the borough of Brooklyn, county of Kings, and thus in the Eastern district of New York. He was there arrested by a deputy United States marshal for the Eastern district of New York upon a warrant issued by a United States commissioner for that district, and, upon being arraigned before such commissioner, was held to appear before the District Court of the United States for the Southern District of New York. Subsequently the present indictment was found against him in this court. The question is whether the offense is properly laid in this district, or whether the case must be tried in the Eastern district of New York.

The venue of such cases is prescribed by section 41 of the Judicial Code, as follows:

'The trial of all offenses committed upon the high seas, or elsewhere out of the jurisdiction of any particular state or district, shall be in the district where the offender is found, or into which he is first brought.'

A brief consideration of the meaning of the terms employed will be helpful. The difference between 'brought' and 'found' is the difference between presence by involuntary and voluntary act. By 'brought' is meant taken, or carried. An illustration of this is where the violator of law upon the high seas is, following the crime taken into custody upon the ship and then brought into port. On the other hand, where the defendant, not having been taken into custody, is, after reaching port, arrested or apprehended under lawful authority for trial for the offense, he is deemed to be found wherever such arrest occurs. Under the statute, the prosecution may be either in the district where the defendant is first brought (i.e., taken), or where he is found (i.e., apprehended). Kerr v. Shine, 136 F. 64, 69 C.C.A. 69, and cases cited. In the present case the defendant was not brought into this district, nor, indeed, into any district, for, as w...