Pedersen v. United States

• Decision Date: 09 February 1921
• Docket Number: 87.
• Citation: 271 F. 187
• Parties: PEDERSEN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

271 F. 187

PEDERSEN et al. v. UNITED STATES.

No. 87.

United States Court of Appeals, Second Circuit.

February 9, 1921

Dudley Field Malone, Isadore Shapiro, and Edward W. McDonald, all of New York City, for plaintiffs in error.

Francis G. Caffey, U.S. Atty., of New York City (Ben A. Matthews Asst. U.S. Atty., of New York City, of counsel), for defendant in error.

Before WARD, ROGERS, and MANTON, Circuit Judges.

WARD Circuit Judge.

Adolph C. Pedersen, master of the American barkentine Puako, and his sons, Leonard R. Pedersen, the first mate, and Adolph E Pedersen, the second mate, were indicted for willfully knowingly, unlawfully, and feloniously beating and wounding seven members of the crew, and of willfully, knowingly unlawfully, and feloniously and without justifiable cause imprisoning three members of the crew while the said barkentine was on the high seas in July and August, 1918, and out of the jurisdiction of any particular state of the United States, and within the admiralty and maritime jurisdiction of the United States, on a voyage from Victoria, British Columbia, Canada, to Capetown, South Africa, contrary to the form of section 291, U.S. Criminal Code (Comp. St. Sec. 10464), which reads:

'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, or without justifiable cause, imprisons any of the crew of such vessel, or withholds from them suitable food and nourishment, or inflicts upon them any cruel and unusual punishment, shall be fined not more than one thousand dollars, or imprisoned not more than five years, or both. Nothing herein contained shall be construed to repeal or modify section forty-six hundred and eleven of the Revised Statutes.'

Section 41 of the Judicial Code (Comp. St. Sec. 1023) provides for the place of trial in such cases 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.'

The cause came on for trial before Judge Mack. All three of the defendants were found guilty of beating Frank Grielen and Jack Jones, being the second and fourth counts of the indictment; the master, of beating James Campbell, the fifth count; the master and first mate, of beating William Jones, the sixth count; the master, of beating Bjarnie Olsen, the seventh count; the master, for imprisoning James Campbell, the eighth count. The jury recommended clemency in the case of the mates on account of their age; the first mate being at the time of the trial in September, 1919, 20 years and the second mate 18 years of age.

The first objection of the defendants is that the District Court for the Southern District of New York had no jurisdiction to try them. This depends upon the construction to be given section 41 of the Judicial Code, supra.

October 1, 1918, the United States Consul General at Capetown, discharged the defendants as master and mates of the barkentine, and as they were leaving the consulate they were arrested by the British immigration authorities as prohibited immigrants under Immigration Regulations Act 1913. Thereafter they were taken on a British transport to the naval camp at Rockingham, England, from there to Brest, France, in the United States destroyer Woolsey, and from there to New York on the United States warship Rochester. This steamer stopped at Quarantine without dropping anchor, and after the usual medical examination proceeded to New York City, where the defendants were arrested by the United States marshal for the Southern District of New York.

Quarantine is in Richmond county in the Eastern district of New York. The statute determines the place of trial with reference to things taking place, not upon the high seas, but within a district or districts of the United States. Though in custody on the Rochester, the defendants were not actually arrested until their arrival in the Southern district of New York.

The decision of the Supreme Court in the case of United States v. Arwo, 1 Wall. 486, 22 L.Ed. 67, and of the Circuit Court in the case of United States v. Baker, 5 Bl. 6, Fed. Cas. No. 14,501, show that the temporary stop at Quarantine did not constitute a bringing into the Eastern district of New York. In the Arwo Case the defendant was brought in irons on an American ship to the quarantine anchorage of New York Harbor, in the Eastern district of New York, where she lay for five days. He was then delivered to the harbor police, who took him without process from any court to New York City, where he was delivered to the United States marshal; a warrant for his arrest being thereafter issued. It was contended that he had been first apprehended and first brought into the Eastern district, but the court held that the Southern district of New York had jurisdiction.

In the Baker Case the prisoners were brought into Hampton Roads, in the Eastern district of Virginia, on a United States warship, where after some two days' delay they were transferred to the United States revenue cutter Harriet Lane, which brought them into New York, where they were arrested under judicial process. Judges Nelson and Shipman held that the act gave jurisdiction in the alternative, and that the Southern district of New York, in which they were finally arrested, had jurisdiction to try them.

Section 97 of the Judicial Code (Comp. St. Sec. 1084), which provides that 'the District Courts of the Southern and Eastern Districts shall have concurrent jurisdiction over waters within the counties of New York, Kings, Queens, Nassau, Richmond, and Suffolk, and over all seizures made and all matters done in such waters,' has no application to jurisdiction over offenses committed upon the high seas; nothing being done in connection with the offense within the waters in question. The defendants were both found and first brought into the Southern district of New York, and the trial court was right in sustaining the jurisdiction.

The defendants next object that the trial judge erred in permitting the government to impeach its witness Mattson, the ship's carpenter. After his testimony, on direct defendant's counsel on cross-examination read in evidence an affidavit made by him at Capetown September 12, 1918, which was in several respects inconsistent with his testimony on direct. He insisted, however, that both the affidavit and his testimony were true. Obviously this called for explanation. He was a plain man, not appreciative of...