United States v. Grassin , 3 Wash. C. C. 65 ( 1811 )

WASHINGTON, Circuit Justice

(charging jury). The first question is, whether an addition made to gun carriages, either by raising, or. otherwise altering them, is an offence, within the fourth section of the act of congress of June 5,1794 [1 Stat. 383]. It is admitted, that the addition of entire new gun carriages is an augmentation within the law; but the alteration of old carriages is denied to be so. To the court, it seems, that nothing can be more plain than the meaning of this section. The offence consists, in increasing, or augmenting, or procuring, or being knowingly concerned, in increasing, or augmenting, the force of any belligerent vessel, which was armed at the time of her arrival within the United States, by adding to the number or size of her guns, prepared for use; or by the addition thereto, (that is to her force,) of any equipment, solely applicable to war. Suppose, then, that a vessel should arrive here, armed with twenty muskets, in complete order, and an equal number in her hold, but without locks, or otherwise useless—we ask, what would be her force, in guns prepared for use? The answer is obvious twenty muskets; since the other twenty, not being prepared for use, <tan constitute no part of her force. But, if the other twenty are prepared for use, by adding locks, is not her force, then, forty guns prepared for use? The locks are an equipment solely applicable to war, and then the whole case is made out. For, the force of the vessel has been increased or augmented, by the addition to the guns prepared for use. by an equipment solely applicable to war. In like manner, if the vessel has but one cannon mounted and prepared for use. and other cannon, say eight, in her hold, dismounted, or on carriages too rotten, or too high, or too low to be used, her force is but one cannon. If, by raising or lowering the carriages, or replacing the decayed, by sound wood, they are rendered fit for use, her force then becomes increased or augmented to nine cannon, prepared for use. and this, by an equipment solely applicable to war.

The second question is, whether the gun carriages of this vessel were so altered, as to increase, or augment her force? One witness has sworn, that the guns could be effectually used on the gun carriages as they were. You will judge, from the height of the port holes, and of the carriages, whether this was possible. That witness is contradicted on this point, by others examined in support of the indictment. Whether they were raised or not, is for you to determine; the witnesses being precisely at variance as to this point. But, it is proved by the defendant’s witnesses, that the carriages were decayed, and were repaired by cutting away those parts, and substituting sound wood. It is, therefore, of no consequence, whether the sound wood which was put on, raised the guns or not; if, by the addition or substitution of it, for that which was decayed, these guns were prepared for use, so as to augment the force of the vessel, beyond what it was at her arrival. If nothing was done but what might well have been done without; it could not be said, that her force was augmented, by the addition of the equipment—quite otherwise, if the addition or alteration was necessary, in order to prepare the eight carroñados for use. On this point, therefore, you must decide according to the evidence.

The third point is peculiarly a subject for your consideration, being a question of fact merely. It is, whether the defendant procured, or was knowingly .concerned, in the addition or alteration that was made in the gun carriages? Prima facie, every presumption is against the commander of a vessel, in such a ease. It is scarce credible, that such important operations in respect to the armament of a vessel; should be undertaken by any person, without the orders of the commander. In addition to this, the omitting to mention these carriages, in the application to the custom-house for a permit to land, is calculated to excite suspicion, that some alterations were intended; because, if they had been mentioned, they would have been placed under the care of a customhouse officer, whose duty it would have been, ■to prevent such alterations from being made. That the defendant knew of these alterations, is strongly contended for upon the evidence of the marshal; who swore, that after the arrest of the defendant, he stated to him that the intention was only to remove the decayed timber, and to substitute new. But, whether he spoke of his own intention, or of those who during his .sickness had acted in the business, is by no means clear. In this ease, the general presumption above mentioned is a good deal weakened, from the circumstance, that the owner was in Philadelphia during the whole time that these repairs were going on, and that during the greatest portion of that time, the defendant was sick and confined to his room. ‘His knowledge of what was going on, were this fully proved, would not be sufficient to fix him with the offence, unless he was in some way concerned in it. Upon this point, it is proper you should be satisfied. tYe have only to add, that if from the publications which were spoken of a+ the bar, you have received impressions unfa-vourable to the defendant, on account of acts done by him, unconnected with the of-fence for which he is now tried, we feel the fullest confidence that you will not suffer them to influence your feelings or your judgment; for, even if the charges made against him were proved, which in this ease they were not, and could not be, they have nothing to do with the issue you are sworn to try.

The jury could not agree in this case, and frequently applied to the court to discharge them. The court informed the jury that they had not the power legally to discharge them, without the assent of the district attorney, and the defendant’s counsel. At length, after keeping the jury together for some time, this assent was granted by both sides, the court agreeing to try the cause again this term, and the jury were accordingly discharged.