Rees v. United States

• Decision Date: 05 April 1938
• Docket Number: No. 4296.,4296.
• Parties: REES et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

95 F.2d 784 (1938)

REES et al. v. UNITED STATES.

No. 4296.

Circuit Court of Appeals, Fourth Circuit.

April 5, 1938.

I. Duke Avnet, of Baltimore, Md., William L. Standard, of New York City, and Wilfred T. McQuaid, of Baltimore, Md., for appellants.

T. Barton Harrington, Asst. U. S. Atty., and Bernard J. Flynn, U. S. Atty., both of Baltimore, Md., and Henry A. Schweinhaut, Sp. Asst. to Atty. Gen.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

NORTHCOTT, Circuit Judge.

The 14 appellants, Walter H. Rees, William Otis Forrest, William A. Raymon, David K. Tuttle, Jr., Earle F. Parsons, Roderick Campbell, Cesar Cortez, Joseph P. Olmo, Felipe Del Valle, Bruno Pietkiewicz, Jhon O. Batista, James E. Whitenton, John H. Croghan, and William J. Cassidy, here referred to as the defendants, were indicted in the District Court of the United States for the District of Maryland, on November 30, 1937, charged with a violation of section 483, Title 18, U.S.C.A., Criminal Code, § 292. There are two counts in the indictment. The first count charged the defendants with endeavoring, on September 10, 1937, to make a revolt on board the steamship Algic, while in the harbor of Montevideo, Uruguay. The second count charged the defendants with conspiring to make said revolt.

The indictment reads as follows:

"The Grand Inquest of the United States of America, in and for the District of Maryland, inquiring for the body of said District, do on their oath present that (naming defendants) each late of said District, who are hereinafter referred to as Defendants, being then and there of the crew of a certain vessel of the United States, to wit, the steamship Algic, heretofore, to wit, on or about the 10th day of September, 1937, on waters within the admiralty and maritime jurisdiction of the United States, and within the jurisdiction of this Court, to wit, the harbor of Montevideo, Uruguay, did unlawfully and feloniously endeavor to make a revolt on board of said vessel; and the said Defendants were thereafter found at Baltimore, in the State and District of Maryland.

"Contrary to the form of the statute in such case made and provided, and against the peace, government and dignity of the United States. U.S.C.A., Title 18, § 483.

"Second Count.

"And the Grand Inquest aforesaid, upon their oath aforesaid, do further present that (naming defendants), each late of said District, who are hereby indicted, and who are hereinafter referred to as Defendants, and Clegg Alexander Lowder, Oscar Thomas Lampkin, Jr., also known as James Oscar Lampkin, Rubel Stewart, also known as Robert Stewart, and Joseph A. Hartley, who are herein mentioned and named as co-conspirators, but who are not herein indicted, all of the said persons being then and there of the crew of a certain vessel of the United States, to wit, the steamship Algic, heretofore, to wit, on or about the 10th day of September, 1937, on waters within the admiralty and maritime jurisdiction of the United States, and within the jurisdiction of this Court, to wit, the harbor of Montevideo, Uruguay, did unlawfully and feloniously combine, conspire, confederate and agree together and with each other to make a revolt on board of said vessel; and the said Defendants were thereafter found at Baltimore, in the State and District of Maryland.

"Contrary to the form of the statute in such case made and provided, and against the peace, government and dignity of the United States. U.S.C.A., Title 18, Section 483."

On December 8, 1937, a demurrer to the indictment was filed on behalf of the defendants. On December 13, 1937, an order was entered by the trial judge overruling the demurrer. Thereupon the defendants, by their attorneys, moved the court to permit a waiver of a jury trial and requested that the case be tried by the court without a jury. The United States by its attorney refused to consent to the waiver of a jury trial and the court denied the defendant's motion to try the case without a jury. The defendants were then arraigned and pleaded not guilty. A trial was had before a jury which returned a verdict finding all the defendants guilty as charged in the indictment.

On December 18, 1937, a motion for a new trial and a motion in arrest of judgment were filed on behalf of the defendants. On December 20, 1937, the trial judge filed a memorandum opinion overruling both motions and entered a judgment sentencing the defendants, Walter H. Rees, William Otis Forrest, William A. Raymon, David K. Tuttle, Jr., Earle F. Parsons, Roderick Campbell, Cesar Cortez, Bruno Pietkiewicz, and James E. Whitenton to 2 months imprisonment in jail, and each of the defendants, Joseph P. Olmo, Felipe Del Valle, Jhon O. Batista, John H. Croghan, and William J. Cassidy, to pay a fine of $50, without cost. From this action this appeal was brought.

The defendants were all unlicensed members of the crew of the steamship Algic, a freight vessel owned by the United States Maritime Commission, an agency of the United States government, being operated for the Commission by the American Republics Line, under a temporary agreement in conformity with section 707(c) of the Merchant Marine Act of 1936, Title 46, U. S.C.A. § 1197(c). On July 16, 1937, at Jacksonville, Fla., shipping articles were signed for a full complement of officers and crew, numbering 38 and including the defendants, for a voyage to South American ports and return, the voyage not to exceed 12 months in duration. The vessel, in command of Captain Joseph A. Gainard, sailed two days later and reached the port of Montevideo, Uruguay, homeward bound, on September 10, 1937, about 6:45 a. m. The Algic anchored in the harbor, using two anchors, about three-quarters of a mile from the dock, between the inner and outer breakwaters. The purpose of her call at Montevideo was to load a miscellaneous cargo, which had to be done from lighters, the work of loading being done by stevedores, who had been arranged for by the local agent of the ship. The only work to be done by the crew of the vessel, with regard to the loading of the cargo, was to furnish steam from the engineering department to give power in the operation of the winches and other machinery used in lifting the freight from the lighters and placing it in the holds of the ship. The crew had no part in the actual handling of the freight, and while cargo is being loaded in port the crew are assigned certain duties, such as painting, cleaning, chipping, etc. These orders for the day beginning at 8 o'clock a. m. were given to the crew by the officers through the boatswain, as was the usual custom.

About 7 o'clock a. m. the stevedores went on board and proceeded to load cargo. Members of the crew learned that a stevedores' strike was in progress in the port and saw a number of natives, presumably striking stevedores, encircling the Algic in launches, shouting and making menacing gestures at the crew and the stevedores on the deck.

Shortly after 8 o'clock a. m. the crew called a meeting, at which all the defendants were present, and after a discussion concluded that the stevedores working on the vessel were strike breakers and decided, by a unanimous vote, to notify the officers of the ship that they would not work with or assist the stevedores on the ship and selected two delegates, defendant Rees, of the deck department, and one Lampkin of the engine department, to notify the officers of their decision. It was also decided at the meeting that the steam would be turned off, if necessary, in order to stop the work of the stevedores.

The two delegates informed the chief officer, the captain being sick in bed, of the refusal of the crew to work with the stevedores. The chief officer told Rees and Lampkin that the strike situation was none of the crew's business, and asked them to go back and explain to the crew the situation as to the strike, there being some information that the strike was not a union and nonunion controversy, but a personal factional fight between groups of the stevedores. Rees and Lampkin returned about 8:35 a. m. and notified the chief officer that the crew still refused to work. The chief officer then talked to the men himself and when he found that the crew was apparently determined to persist in their attitude, he requested Rees and Lampkin to ask the men to leave the steam on long enough so that the hatches could be covered, in order to protect the cargo already loaded. The delegates subsequently reported to him that the men agreed to this and the hatches were covered. Almost immediately thereafter the steam was turned off at the master valve in the engine room, thus putting out of commission all the machinery on the deck. In the meantime the stevedores had ceased to work, but remained on the ship throughout the day.

The American Consul at Montevideo, having been sent for, came aboard the vessel about 9:25 a. m. and, after being advised by the officers as to the situation, talked to the crew advising them that, in his opinion, they were acting without authority of law, and should go back to work. After the Consul withdrew, the crew took another vote and Rees and Lampkin reported to the chief officer that the men still refused to work, the vote being 11 men to keep the steam off, 7 to keep it on, and 4 men not voting. After that the captain of the ship, the agent of the steamship line, and the American Consul went ashore, where the captain communicated by telephone with the Maritime Commission in Washington, about the situation.

During the morning it became necessary to shift the anchorage and one of the engineers turned the steam on so that could be done. The anchors were changed by the chief officer assisted by the third mate.

About 5 o'clock p. m. the captain and the Consul having returned to the ship, the captain assembled the crew in the presence of the other officers and the Consul, and informed them that he had communicated with the Maritime Commission and had been...