United States v. Smith , 27 F. Cas. 1158 ( 1809 )

Edwards, J.

That is inhere the witness does not object. But here the witness does object.

The District-Attorney observed further, that the witness came here voluntarily, and agreed to testify. He ought not now to surprise us by refusing to testify. It Would be hard on the part of the United States, if he were permitted to conduct in this manner.

Edwards, J. That is of no consequence. The only question is, whether he can be compelled to testify to what may implicate himself, because two years have elapsed since the transaction.

The District-Attorney then insisted, that the lapse of two years after the offence was committed without any prosecution, is unquestionably a complete bar; and cited Adams, q. t., v. Wood, 2 Cranch, 336. The witness is now as secure from the penalties of the statute, as though he had never committed the offence,

Daggett, for the defepdant. The United Slates statute of limitations has a proviso expressly excepting persons fleeing from justice from its operation.^(a) It appears that this witness has béen out of the United States a'considerable part of the time since the transaction took place; [This had been previously stated, and admitted by the counsel for the United States.^ Now, a fleeing from justice is nothing more than avoidance, a going out of the jurisdiction to avoid prosecution. So the con-? struction has been as to fugitives from justice from one state into another. But at any rate, the witness will be jeopardized by testifying; and this is sufficient to excuse him. If prosecuted for this offence, he must plead the statute of limitations. The attorney for the United, States may then reply over a fleeing from justice. This he will attempt to support, by showing that the witness has actually been without the jurisdiction of the United States. Will not this jeopardize him ? The statute of limitations never purges the offence. Nothing but a pardon will afford the offender complete security. The case of Bollman, on Burr's Trial, was referred to: The question there was, whether Bollman was bound to accept the pardon. But without the pardon, jt was admitted that he could not be called upon to testify,

Peters, for the United States, contended, that a fleeing from justice within the proviso of the statute, must be a fleeing from a prosecution begun.

Edwards, J. That point was decided otherwise by Cfi. J. Ellsworth, in the case of Isaac Williams. He said, it tpade no difference whether a prosecution was commenced, or not.

Goodrich stated, that in Williams's Case, the offender had simply been in a foreign ’country; and it was considered as a fleeing from justice.

Edwards, J. I am prepared to give my opinion on the point; but if the jury should find a verdict a*nst the defendant, I will give him an opportunity to move for a new trial, and have the opinion of Judge Li-oingti Hon" appears to me, that the witness is prima fatiei protected from prosecution, by the statute of limitations! answer comes from him. He says he ⅛ not pro* tecled, because he has fled from justice. But he ought not to make his fleeing from justice (his own crime) a ground for withholding his testimony. At the same time, the court will take care that the witness be not entrapped. The attorney will not be allowed to say now that the prosecution is barred, and thus obtain his testimony; and afterwards bring forward a prosecution, and say that it is not barred, because the witness has fled from jus*-tice. The witness must testify.

Where the ^magistrate taking a depo-amoti, stated it to have \T"his’‘pre-⅛⅛ and it sab-Radie™ reduced to writing by the de* ponent ten days before, at l>laeeiIelwhen the magistrate 8ent;I 0¡t was deposition was inadmissible: ¡States courts,

In the course of the trial, the District-Attorney offered the deposition of Thaddeus R. Austin, It appeared that tyie substance of this deposition had been copied by the deponent, from another paper which he had written at Suffield, about ten days before. The certificate of the magistrate who took the deposition, was as follows s « Personally appeared the above-named Thaddeus R. Austin, of Suffield, in the state of Connecticut, and being duly cautioned, made oath to the truth of the above deposition by him subscribed, and written in my presence,'* &C.

Daggett objected to the admission of this deposition, on the ground that it was not taken as the act of congres? requires. The 30th section of the Judiciary Act (vol. P- 690 provides, that every person deposing shall be carefully examined, and cautioned, and sworn, or affirmed to testify the whole truth, and shall subscribe the testimony by him or her given, after the same shall be reduced to writing, which shall be done only by the magistrate taking the deposition, or by the deponent in his presence. This testimony was not reduced to writing fcy tftc joaagjstrate taking the deposition, nor by the 4e* ponept in his presence.

The offence of congress1!!!' ^10> )!'®< transporting one^foreigw co,untr!' to »n-other, with a view to their being sold as slaves; and the °?enee l* when the ves-the *^*ce th9ether°nihe slaves are sold or not.

Peters, contra.

: Edwards, J. The provisions of the act of congress relative to the taking of depositions, are very important, and ought to be adhered to strictly. This deposition cannot be read. The question is not a new one. In England, the lord chancellor has refused to admit depositions taken as this was.

The transportation of the slaves from Africa to Ha-■vanna, as stated in the declaration, was clearly proved by. the evidence adduced on the part of the United States. It appeared that the vessel arrived at Havanna more than two years before the commencement of the suit; but it did not appear that the slaves were actually sold . . . 1 until some time within the two years.

Goodrich and Daggett contended, that the offence charged in this declaration is complete when the vessel arrives; and her arrival takes place when she is moored, It is not necessary that the slaves should be landed, or Sold.

The District Attorney and Peters, contra, insisted, that in order to constitute the, offence in question, the persons transported must be sold as slaves ; if they are transported for the purpose of colonization, or any other purpose than to be sold as slaves, it is no offence. But at any rate, they must be landed before the offence is cothplete. It does not appear that these slaves were landed more than two years before the commencement of the suit. If the defendant relies upon the statute of limitations for his protection, it belongs to him tcMhow this, which he has not done.

gCT” In the other causes tried at this term, no points oí law were decided of sufficient importance to render it expedient to report them. The District Attorney (Huntington) and Peters, for the United States. Goodrich, Daggett, Mosely and Dwight, for the defend* ant*

Goodrich, in reply, observed, that it clearly belonged to the United States to prove the offence committed within two years from the commencement of the suit otherwise there could be no recovery. There is a manifest distinction between this case and that where a dpbt is admitted by the defendant, and claimed to be barred by the statute of limitations- '

Edwards, J. That part of the case which rests upon the statute of limitations is extremely clear. My opinion is, and so I shall charge the jury, that the offence consists in transporting persons from one foreign country to another, with a view to their being sold as slaves; and as soon as the vessel arrives at the place of destina-, tion, the offence is completed, whether the slaves are sold or not. It is incumbent on the attorney for the United States to show an offence committed within two years ; and as this has not been done, there must be a verdict for the defendant.

The jury found accordingly.

(a) if) The latter clause of the S2d section of the act of congress qf •Aprils0, 1790, (vol. 1. p. 114.) is as follows: “ Nor shall any person be prosecuted, tried or punished for any offence not capital, nor for any fine or forfeiture under any penal statute, unless the indictment or information for the same shall be found or instituted within two years from the time of committing the offence, or incurring the fine or forfeiture aforesaid.” Then follows this proviso; “ Provided that nothing herein contained, shall extend to any person or persons fleeing, from justice'9