Moffitt v. United States

• Decision Date: 01 February 1904
• Docket Number: 951.
• Citation: 128 F. 375
• Parties: MOFFITT v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

128 F. 375

MOFFITT v. UNITED STATES.

No. 951.

United States Court of Appeals, Ninth Circuit.

February 1, 1904

The plaintiff in error, master of the British steamship Tucapel was indicted in the District Court for the Northern District of California for an alleged violation of the provisions of section 10, c. 551, Act March 3, 1891, 26 Stat. 1086 (U.S.Comp.St. 1901, p. 1299). The indictment contained three counts. A demurrer was interposed to this indictment upon the ground that it did not in either count set forth sufficient facts to constitute an offense against the United States. A motion was also made to quash the indictment upon the same ground. This motion was denied. The demurrer was sustained as to the second and third counts, and overruled as to the first count. This count charged the plaintiff in error with having unlawfully neglected at San Francisco, Cal., to detain, on board the Tucapel, Rodrego Marquez, an alien not entitled to land, and by reason of such neglect the aline escaped from the vessel and landed in the United States. The defendant entered his plea of not guilty, and the case was tried before the court with a jury, upon the following agreed statement of facts: '(1) Defendant at all the times herein stated was and now is, master of the British steamship Tucapel belonging to the Pacific Steam Navigation Company, then plying as a common carrier between San Francisco and Mexican and South and Central American ports, on the Pacific Coast. (2) On the morning of the 25th day of June, 1901, the Tucapel, carrying passengers, a cargo of freight, and the United States mail, destined for San Francisco and elsewhere arrived off the port of Mazatlan, Mexico, on her way north, and was anchored at a considerable distance there, off shore. She was thereupon surrounded and boarded by native boatmen and peddlers, who coming out to the vessel in small boats or cascoes, according to the practice prevailing at this and other southern ports, came on board the vessel to sell fruits and other wares to passengers and members of the crew. (3) Among these boatmen and peddlers was Rodrego Marquez, a Mexican. (4) After remaining at anchor off Mazatlan for several hours, and completing the transaction of her business there, the vessel proceeded on her journey north, on the afternoon of said day, traveling at her usual rate of speed, of from twelve to fourteen knots an hour. She had proceeded upon her voyage about ten miles, when one of the ship's officers reported to defendant, as master of the said vessel, that Marquez had been by accident overcarried, and was then on board the Tucapel. Defendant thereupon interviewed the Mexican, who begged him to stop the vessel, return to Mazatlan, and land him there, inasmuch as he had not noticed while plying his business on the steamer that she was under way until he had returned to her deck, a short time before his case has been reported to defendant. Marquez protested that he did not wish to be carried to the United States, but defendant declined to accede to his request, and then return to Mazatlan, especially as it was a matter of common occurrence for a native boatman or peddler to be overcarried from one port or place to another on the South Pacific Coast, but he promised Marquez, however, to bring him back to his native place on the return voyage of the steamer, and, without being placed on the crew list, he was set at work shoveling coal as a work-away on the voyage north. (5) The Tucapel arrived at San Francisco, June 30, 1901, with Rodrego Marquez on board, who then said he did not want to land, but to be returned to Mazatlan as soon as possible. (6) On her arrival at San Francisco the vessel was boarded by an immigration inspector, who notified defendant not to land Marquez until permission therefor had been obtained from the commissioner of immigration at the port last named, said Marquez having no financial means whatsoever at San Francisco. (7) Marquez was not locked up nor placed in irons on board the steamer, and on the night of the 4th of July, 1901, and just before the steamer left San Francisco on her southern route, he left the vessel without the knowledge or permission of defendant, or any of his officers, or of the officers of the immigration bureau here. (8) Defendant at no time had any intention or wish to land Rodrego Marquez at this or any other port or place in the United States, and, as far as defendant could learn, said Marquez had at no time any intention of coming to or landing in the United States. (9) The Pacific Steam Navigation Company has withdrawn its steamers from the San Francisco route, and they, including the steamer Tucapel, are now engaged exclusively in plying between ports and places on the South Pacific Coast, as far north as Panama. The steamer sailed from San Francisco for the last time February 10, 1902. The foregoing statement is subject to any objection thereto or to any part thereof by either plaintiff or defendant on the ground that the same is immaterial or irrelevant.'

The defendant moved to strike out certain portions of the agreed statement of facts as immaterial and irrelevant, which motion was denied. After the facts agreed upon had been read to the jury, the defendant moved the court to instruct the jury to bring in a verdict for the defendant upon the following grounds: '(1) That the indictment fails to set out that Marquez was an alien immigrant under the act of 1891, under which the indictment was framed, which relates to foreign immigration, and therefore there can be no conviction unless the indictment has set forth that fact. (2) That the indictment fails further to state a cause of action, in that it does not show in what respect this alien, if an immigrant, was a person not lawfully entitled to enter the United States. It does not show in what respect this alien was included, if at all, in one of the interdicted classes. (3) For the reason that the facts as agreed and shown to the jury do not make a case for the government in that, among other reasons, it is not shown that Marquez was an alien immigrant, and it is not shown that he came to this country with the intention of coming here, but was involuntarily carried here.'

This motion was denied. The court also declined to give certain instructions asked for by defendant, and gave other instructions to the jury, to all of which the defendant duly excepted. The jury returned a verdict of guilty, and the defendant was sentenced to pay a fine of $300. From this judgment the defendant brings a writ of error to this court.

There are 10 assignments of error, covering every ruling of the court below, but, as was said by counsel for the plaintiff in error, these assignments may be grouped into three classes, and pertain '(1) to the insufficiency of the first count of the indictment as a statement of the commission by plaintiff in error of an offense against the laws of the United States; (2) to the proper construction of section 10 of the act of March 3, 1891, under which the indictment was framed, which refers to immigrants and no others; and (3) to the insufficiency of the evidence to sustain the verdict.'

Page, McCutchen & Knight, for plaintiff in error.

Marshall B. Woodworth, U.S. Atty., and Benjamin L. McKinley, Asst. U.S. Atty.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge (after stating the facts as above).

If the alien Marquez was not a person permitted by law to enter or remain in the United States, it is manifest that the plaintiff in error did not exercise reasonable diligence, and was clearly guilty of negligence in failing to detain said alien on the vessel. The good intention, or absence of any wrongful intention, on the part of plaintiff in error, would constitute no excuse whatever for his negligence.

The real question presented for our determination is whether or not the agreed statement of facts is sufficient to show that the alien Marquez belonged to one of the classes of persons whose admission into the United States is excluded by the provisions of the act of March 3, 1891, c. 551, 26 Stat. 1084 (U.S.Comp.St. 1901, p. 1299). It will be observed that this act is 'An amendment to the various acts relative to immigration and the importation of aliens under contract or agreement to perform labor. ' In some particulars it was amended by 'An act to facilitate the enforcement of the immigration and contract labor laws of the United States,' approved March 3, 1893 (27 Stat. 569, c. 206 (U.S.Comp.St. 1901, p. 1300)); and again March 3, 1903, by 'An act to regulate the immigration of aliens into the United States' (32 Stat. 1213, c. 1012 (U.S.Comp.St.Supp. 1903, p. 170)).

All these acts, as was the act in regard to contract labor (Act Feb. 26, 1885, c. 164, 23 Stat. 332 (U.S.Comp.St. 1901, p 1290)), are highly penal in their character, and should be so construed as to bring within their condemnation only those who are shown, by direct and positive averments and clear proof, to be...