Latham v. United States

• Decision Date: 21 October 1924
• Docket Number: No. 2206.,2206.
• Citation: 2 F.2d 208
• Parties: LATHAM et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

2 F.2d 208 (1924)

LATHAM et al. v. UNITED STATES.

No. 2206.

Circuit Court of Appeals, Fourth Circuit.

October 21, 1924.

Leon T. Seawell, of Norfolk, Va. (Hughes, Little & Seawell and R. M. Hughes, Jr., all of Norfolk, Va., on the brief), for plaintiffs in error.

Paul W. Kear, U. S. Atty., and L. S. Parsons, Asst. U. S. Atty., both of Norfolk, Va.

Before WOODS and WADDILL, Circuit Judges, and SMITH, District Judge.

WOODS, Circuit Judge.

The defendants Latham, Cowart, and Schwarz, tried together by consent, were convicted on identical informations charging in the first, second, and third counts respectively possession, sale, and transportation of 28,838 bottles of whisky on board the schooner Pesaquid, about two miles off Portsmouth Island, Va., within the territorial waters of the United States.

Error is assigned in the refusal of a motion to instruct the jury to acquit made at the close of the evidence for the government, on the ground that nothing had been adduced tending to prove the defendants guilty of any of the crimes charged. This motion should have been renewed at the close of all the testimony, and if refused an exception should then have been noted in order to require consideration of the question by this court. Hansen v. Boyd, 161 U. S. 397, 16 S. Ct. 571, 40 L. Ed. 746; Perovich v. United States, 205 U. S. 86, 27 S. Ct. 456, 51 L. Ed. 722. But even in the absence of an exception the appellate court may consider whether there is any substantial evidence of the guilt of the accused. Wiborg v. United States, 163 U. S. 632, 16 S. Ct. 1127, 1197, 41 L. Ed. 289; Clyatt v. United States, 197 U. S. 207, 25 S. Ct. 429, 49 L. Ed. 726; Crawford v. United States, 212 U. S. 183, 29 S. Ct. 260, 53 L. Ed. 465, 15 Ann. Cas. 392. In this case the court will do so more readily because the liberty of the defendants is at stake and an important public question is involved.

There is little dispute as to the facts which we regard material. The defendant Latham was the master, and the defendants Cowart and Schwarz were the supercargoes on the schooner Pesaquid, a vessel flying the British flag and owned by the Bahama Fisheries Company, Ltd., of Nassau. According to her papers her destination was St. Pierre, Miquelon. She left Nassau on July 5, 1923, with a cargo of 3,500 cases of whisky owned by Pender, Collins, and Byrum of Nassau. She did not make for her pretended destination, but on July 20, 1923, was sighted by the coast guard cutter Manning about seventeen miles east of Cape Henry, Va. The Manning followed the Pesaquid to the limit of the waters she was assigned to guard. The Pesaquid was next sighted by the cutter Mascoutin on July 30, 1923, near Hog Island, Va., headed away from her pretended destination. The direct voyage from the Bahamas to the Virginia Capes should have been made by the schooner in five to seven days. The officers of the Mascoutin kept watch on the whisky-laden schooner and seized her when, according to their testimony, she approached within two miles of the Virginia coast.

After leaving Nassau and while sailing along the coast of the United States, the supercargoes had sold from the schooner to boats coming from the shore about 1,350 of her cargo of 3,500 cases of whisky. The testimony on behalf of the defendants was to the effect that the schooner was not at any time within the territorial waters of the United States. The issue of fact thus made as to possession and transportation of whisky in the United States was properly submitted to the jury, and their findings thereon against the defendants is binding here.

The officers of the Pesaquid testified that if the schooner sailed into the territorial waters of the United States, the entry was accidental and involuntary when she was on her voyage back to Nassau for water and food supplies. On this point the District Judge charged the jury to acquit if they believed the schooner involuntarily crossed the line while sailing for Nassau with no intention of stopping or unloading any part of her cargo of whisky in the United States. Conversely, the instruction was given that even the involuntary crossing of the vessel into the territorial waters of the United States while carrying a cargo of whisky would be criminal if the vessel was sailing along the coast with the intention of landing the whisky. Defendants had no ground to complain of this instruction. One who ranges along the land or water line of any country with the design of aiding in the subversion of its laws challenges that country to enforce its laws and assumes the risk of his own mistakes and the action of wind and tide and all the forces of nature.

The evidence and admissions of the defendants themselves tend strongly to prove their offense of possessing, transporting and selling whisky in the United States. The master, Latham, was sailing his vessel along the coast in association with the supercargoes, Cowart...