Hart v. United States, 2.

• Decision Date: 18 January 1898
• Docket Number: 2.
• Citation: 84 F. 799
• Parties: HART v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

84 F. 799

HART v. UNITED STATES.

No. 2.

United States Court of Appeals, Third Circuit.

January 18, 1898

Wm. W Ker and George Gray, for plaintiff in error.

James M. Beck (Francis Fisher Kane, on brief), for the United States.

Before ACHESON and DALLAS, Circuit Judges, and KIRKPATRICK, District judge.

DALLAS Circuit Judge.

The gravity of this case has been eloquently but needlessly adverted to by counsel on either side. Its importance to both the public and the plaintiff in error is obvious, and it has received our most careful attention. The law generally pertinent to it has, however, been so fully considered by the supreme court in Wiborg v. U.S. 163 U.S. 632, 16 Sup.Ct. 1127, 1197, that, for the most part we have but to apply the principles enunciated in that case to the one now before us. There, as here, the indictment was founded upon section 5286 of the Revised Statutes, which is as follows:

'Every person who, within the territory or jurisdiction of the United States, begins, or sets on foot, or provides or prepares the means for, any military expedition or enterprise, to be carried on from thence against the territory or dominions of any foreign prince or state, or of any colony, district or people, with whom the United States are at peace, shall be deemed guilty of a high misdemeanor, and shall be fined not exceeding three thousand dollars, and imprisoned not more than three years.'

In the Wiborg case, as in this case, the defendant below was convicted, not of setting on foot, but only of providing the means for, such a military expedition or enterprise as this section denounces; and there, as here, the main questions were as to the sufficiency of the proof-- First, of the existence of a military expedition or enterprise, under the statute; and, second, of the defendant's knowledge of the facts by which, if at all, a military expedition or enterprise was made out. In Wiborg's Case the trial judge had submitted these matters to the jury, and this action, and the instructions which accompanied it, were approved by the supreme court. As to the first question, the court said:

'From that evidence the jury had a right to find that this was a military expedition or enterprise, under the statute, and we think the court properly instructed them on the subject.'

And in the other it used this language:

'We repeat that on the second material question, namely, whether the defendants aided the expedition, with knowledge of the material facts, the jury were instructed that they must acquit unless satisfied beyond reasonable doubt that defendants, when they left Philadelphia, had knowledge of the expedition and its objects, and had arranged and provided for its transportation. We hold that the defendants have no adequate ground of complaint on this branch of the case.'

That case and this one were tried by the same learned judge, and it is apparent that he intended to, as it is clear that he did, charge upon the subjects now under consideration to the same effect on both occasions. Therefore the only question now is as to whether the evidence in the present case was so materially different and inadequate as to require its withdrawal from the jury, notwithstanding the prior authoritative decision that the jury's judgment in the previous one had been rightly invoked. If the evidence in this case were believed (and whether or not it should be was left to the jury), there could be no doubt respecting the primary facts from which the ultimate facts (the existence or nonexistence of a military expedition, and of incriminating knowledge on the part of the defendant) were to be deduced. The court below held that upon both these points it was for the jury to draw the inference which, upon giving the defendant the benefit of any reasonable doubt, they should be satisfied was the proper one; and the correctness of this ruling depends upon whether or not, as to each of the questions so submitted, a conclusion adverse to the accused could rationally be reached. If there could not be, we agree that a conviction should not have been permitted, and thus we are brought to consider the evidence. It shows that the defendant was the president and manager of the J. D. Hart Company, and that that company was the owner of the steamship Laurada, which carried the men, weapons, and military supplies, charged to have constituted a military expedition, from a point off Barnegat to the Island of Navassa, where they were transferred to another vessel, the Dauntless, which thereupon took them away in the direction of Cuba. A recital of the more particular facts, so far as they need be recited, is embodied in the charge of the court below, from which we quote:

'Your first inquiry therefore will be, was the expedition which was taken on board the Laurada off Barnegat, and carried to Navassa Island, in sight of Cuba, a military expedition, within the meaning of these terms as I have defined them, set on foot in this country to make war against the government of Cuba? That the destination of the expedition was Cuba does not seem open to reasonable doubt, though this, as well as all other facts in the case must be decided by yo,. The people of the Island of Cuba, or a part of them, are engaged in war against their government. Several of the men composing the expedition said, if the evidence is believed (and that, of course, is for you), that Cuba was their destination, and that they were going there to fight the Spanish; and when transferred to the Dauntless at Navassa, they went in that direction. The men, according to the testimony, were principally Cubans. Was the expedition, however, military, such as I have instructed you the statute contemplates? In other words, had the men combined and organized before leaving this country, and provided themselves with arms, as before described, for the purpose of going to Cuba to make war against the government? They came to the Laurada in a body, apparently acting from a common impulse, as by preconcert. The arms and other military supplies came at the same time, though from New York. The men immediately went to work, transferring the arms, munitions, and other military stores from the schooner on which they came to the Laurada, under the orders of one or more of their number. On the way to Navassa they continued to work about this cargo, opening boxes, assorting ammunition, and making sacks from canvas brought for the purpose, as the witnesses described, under the orders of Capt. Sutro, who, the witnesses say, conferred with and received orders, or appeared to receive orders, from Gen. Roloff. When approaching Navassa, three of the men, wishing, apparently, to desert, if the testimony is believed (and that is a question for you), withdrew from the others, and hid themselves in a part of the ship where they supposed discovery might be avoided, whereupon, as I understand the testimony, (and you will judge whether I am right or not), Gen. Roloff had them sought for, brought out, and sent upon the Dauntless, with the other members of the expedition. If this latter statement respecting the desertion of these men, or attempted desertion, hunting them up, bringing them out, and requiring them to go, is true (and you must judge whether it is or not), it shows that the men were not at that time, at all events, free agents, but were subject to orders which they could not disobey. From these circumstances, and from all the evidence bearing on the subject, you must determine whether the men had combined and organized as I have described, in this country, to go to Cuba as a body, and fight, or were going as individuals subject to their own wills, with intent to volunteer in the insurgent service there, if they should see fit to do so on arriving there. You must judge from the evidence whether the men had combined, organized, and consented to the government of one or more of their number here in this country, to go to Cuba and make war there upon the Spanish government, or whether they were going individually, each on his own account, with liberty to volunteer or not, as they saw fit, when they reached Cuba.

If you do not find that they had so combined and organized before leaving this country, then they did not constitute a military expedition, and the defendant must be acquitted. If, on the contrary, you find that they had so combined and organized in this country, you must next determine whether the defendant provided means for their transportation, not the whole way, but to Navassa. It is not necessary that he should transport them to Cuba, as I have said. If he provided means for their transportation to Navassa, on their way to Cuba, and made this provision here in Pennsylvania, with knowledge of the character of the expedition, and of its destination, he is guilty. The transportation was made by the Laurada. This is an undisputed fact. That somebody here provided her for this service seems clear, though this question, as other questions of fact, I repeat, is for you. It seems to be beyond room for controversy that somebody here provided the Laurada for that service, and provided her with stores and extra boats. I say it appears so to the court, but still you are not bound by what the court thinks of the evidence. The fact is for you. She started from the port of Philadelphia, taking on here, if the witnesses are believed, an unusual supply of coal for her alleged voyage, and an unusual supply of other stores. After clearing for San Antonio, she surrendered this clearance, taking another for a coastwise trip to Wilmington, and upon her arrival there immediately took a clearance for Port Antonio again. After passing down the river 20 miles further, she anchored and awaited the arrival of small boars brought...