Fish v. United States

• Decision Date: 10 July 1914
• Docket Number: 1065.
• Citation: 215 F. 544
• Parties: FISH v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

215 F. 544

FISH v. UNITED STATES.

No. 1065.

United States Court of Appeals, First Circuit.

July 10, 1914

Rehearing Denied August 11, 1914.

In Error to the District Court of the United States for the District of Massachusetts; Clarence Hale, Judge.

Criminal prosecution by the United States against John A. Fish. Judgment of conviction, and defendant brings error. Reversed.

William H. Lewis, of Boston, Mass., for plaintiff in error.

Asa P French, U.S. Atty., of Boston, Mass. (James S. Allen, Jr., of Boston, Mass., on the brief), for the United States.

Before PUTNAM, DODGE, and BINGHAM, Circuit Judges.

BINGHAM Circuit Judge.

The plaintiff in error, hereinafter called the defendant, was indicted in the District Court of the United States for the District of Massachusetts for willfully and corruptly burning and destroying an auxiliary gasoline schooner yacht called the Senta, of which he was the sole owner, on October 25 1910, in Edgartown Harbor, Mass., upon waters within the admiralty and maritime jurisdiction of the United States with intent thereby to prejudice the underwriters who had insured the yacht. The provisions of law under which the indictment was framed will be found in section 300 of the Criminal Code of the United States (Act March 4, 1909, c. 321, 35 Stat. 1147 (U.S. Comp. St. Supp. 1911, p. 1678); R.S.U.S. Sec. 5365 (U.S. Comp. St. 1901, p. 3641)). The jury returned a verdict of guilty. The case is now here on the defendant's bill of exceptions, and the errors assigned are: (1) To the reception of evidence relating to two fires other than the one charged in the indictment; (2) to the admission of certain other evidence; (3) to the argument of the district attorney; and (4) to the refusal of the court to give certain instructions.

The evidence tended to show that the yacht, which for convenience will hereafter be spoken of as the second Senta, was destroyed by fire between 2 and 3 o'clock on the morning of October 25, 1910, while at anchor in Edgartown Harbor, and within a few hundred yards of the shore; that the defendant was then on a pleasure cruise, and had come into the harbor some two or three days before, and had with him a cousin by marriage, Mrs. Williams, a friend, Miss Barnes, and a crew consisting of a sailing master and three men; that on the afternoon of October 24th the defendant went ashore in Edgartown, and while there at that time, or a day or so before, became acquainted with two men, Osborn, a local ferryman, and Dexter, a member of the state police, both of whom he invited to dinner that evening on the yacht; that Osborn and Dexter came to the dinner, and while they were there the defendant arranged a gunning trip with Dexter, upon which they were to start at an early hour the next morning; that Dexter and Osborn went ashore somewhere between 8 and 10 o'clock; that the ladies concluded to retire about 10:30, but before doing so requested the defendant to light the oil stove, which was in the cabin, so that they might warm their feet; that, after warming themselves for a short time, they retired to the stateroom they were to occupy that night, which was situated on the starboard side and forward of the main cabin; that as they did this the defendant, who was in the aft stateroom, on the port side and forward of the main cabin, called out to them not to turn out the stove, as he wanted to come out and write some letters; that when they left the cabin the stove was about halfway between their stateroom and the dining table, the distance between the end of the table when extended and the partition to their room being five or six feet; that the table was not extended when they retired, and the stove was several feet away from it; that the stove was then burning and not smoking; that previous to this night Mrs. Williams had occupied the stateroom which the defendant was occupying, but on this night she slept with Miss Barnes, who was the regular occupant of the stateroom on the starboard side; that this change was made at the defendant's request, he stating that possibly one of the guests would stay aboard, but neither of them did, and neither was invited; that before this the defendant had slept in the transom berth in the main cabin; that after the ladies had gone to sleep, and between 2 and 3 o'clock in the morning, they were awakened by the defendant, who opened their door, saying, 'Get out as quick as you can;' that they both arose, Mrs. Williams going at once, without stopping to dress, into the cabin, where she met the defendant near the door of his stateroom, holding her coat, which he helped her to put on; that at the defendant's direction she passed through the cabin, up the companionway to the deck, and went forward; that her coat was usually kept in the companionway, which was at the rear end of the cabin and opposite the door of the defendant's stateroom; that as she passed through the cabin she saw, and smelled, smoke, but observed no flame; that she passed within two feet of the stove, which was where they had left it the night before, and there was a dark object-- cloth, she thought, thrown over the top of it; that the captain, who occupied the stateroom on the port side, forward of the one occupied that night by the defendant, was awakened by hearing the ladies' voices; that he went on deck as soon as he could, reaching there shortly after Mrs. Williams; that either before or after going on deck he learned from the defendant that something was the matter with the oil stove, and was directed to look out for the ladies and call the crew, which he did at once; that after getting on deck, and while speaking to the defendant through one of the skylights, he smelled smoke, but saw none; that Miss Barnes came on deck about three minutes after Mrs. Williams; that before Miss Barnes came on deck flames were seen emerging from the portholes on the starboard side; that the captain and the ladies got into the launch, the captain remaining in it until the launchmen got in and hauled it up to the bow and around to the port side, when he boarded the skiff, which lay on that side; that while the launch was passing under the bow, and before the defendant appeared, flames were seen coming out of the companionway and the skylight; that later, and about 8 or 10 minutes after Miss Barnes reached deck, the defendant came on deck from out the forward galley; that about five or six minutes before the defendant came on deck, and after the launch had reached the port side of the yacht, an explosion was heard, 'a fairly loud, muffled explosion'; that when the defendant came on deck he had a bundle and two guns with him, and at once got into the launch, and all went ashore; that neither the captain nor any of the crew went below after going on deck; that the defendant was the only one below after Miss Barnes came on deck; that the defendant at no time called for assistance, and no attempt was made to put out the fire; that just aft of the cabin were tanks containing several hundred gallons of gasoline; that there were on board tanks containing several hundred gallons of water, some buckets, and means provided for admitting salt water to the bathtub; that after getting on shore the defendant stated, in explanation of the fire, that he was awakened between 2 and 3 o'clock, and found the cabin full of smoke, and the tablecloth and the partition on fire; that he threw a blanket over the kerosene stove, which was burning, and called the captain and the ladies; that he thought the kerosene stove set the fire; that while he was in the stateroom getting his guns there was an explosion which knocked down the partition of the stateroom, striking him.

It also appeared in evidence that on October 8, 1910, the defendant shipped from the yacht to his address in New York three boxes and a bag, the aggregate weight of which was 215 pounds; that two days before the fire a box weighing 65 pounds was brought ashore from the yacht, which contained clean bed and table linen and other things, which the defendant himself had packed; that this box was shipped in Osborn's name, addressed to Miss Barnes, New York; and that subsequent to being indicted the defendant said to Mrs. Williams that he did not see how he could be convicted, as no one saw him set the fire.

As bearing on the question that the defendant and no one else had a motive to set the fire, and that it was intentionally set by the defendant, it further appeared that two days before the fire the defendant made the remark that he wished some one would show him how to raise some money; that at the time of the fire he had insurance on the yacht for $15,000; that while the cost of the yacht ($1,500), plus the repairs ($4,700), made it stand him at a little rising $6,000, it was only worth about $3,800, and consequently was largely over-insured; that he had come into no property other than what he received from a wife who died in 1904, and that he disposed of that in one way or another shortly after she died; that subsequent to that time, and during a part of 1906 and 1907, he worked in a store for $20 a week, and after that, through his association with a firm of insurance brokers, had earned from $500 to $1,000 a year; that he received a pension of $45 a month; that by reason of loans obtained from Miss Barnes he was indebted to her in the sum of from $12,000 to $15,000; that he had an account with only one bank in New York, at which his balance on October 25, 1910, the date of the fire, was $42.58, and on the day following the fire, being out of funds, he borrowed $400 from Osborn, $300 of which he failed to repay; that immediately after the fire he applied for the insurance, but the underwriters declined to pay it.

Subject to the defendant's objection...