UNITED STATES v. JOHNS, 26 F. Cas. 616

WASHINGTON, Circuit Justice (charging jury.) The court think it unnecessary to give an opinion upon these objections, which appear upon the face of the indictment, and particularly that which is made to a corporate body, being included in the words “person or persons,” because the defendant may avail himself of them, should he be found guilty, on a motion in arrest of judgment. As to the third objection, that he is stated to have destroyed his vessel, with a view to gain corrupt advantage to himself, &c. these words are merely surplusage, and need not have been proved.

The intent to defraud the underwriters, it was necessary to state, and it is stated. Before the prisoner can be found guilty, you must be satisfied of the following facts: 1st. That Johns was the owner of the Enterprise: this is acknowledged. 2d. That she was insured: this is proved. 3d. That she was cast away, or otherwise destroyed. This is a mixed question of law and fact. The question of law is new; and in giving a legal definition of those words, we have very few sources of information to resort to.

But after the fullest consideration, which we have been able to give the question, we are of opinion, that to “destroy a vessel” is to unfit her for service, beyond the hopes of recovery by ordinary means: This, as 'to the extent of the injury, is synonymous with “cast away;” it is the general term. Casting awajr is, like burning, a species of destruction. Both of them mean such

an act as causes the vessel to perish; to be lost; to be irrecoverable by ordinary means. Whether, upon the evidence, and agreeable to this definition, the Enterprise was cast away or destroyed, is a matter of fact for your decision. 4th. That the prisoner perpetrated the act, or directed or procured it to be done, positive evidence is not necessary.

Circumstantial evidence is sufficient, and is often more persuasive to convince the mind of the existence of a fact, than the positive evidence of a witness, who. may be mistaken; whereas a concatenation, and a fitness of many circumstances, made out by different witnesses, can seldom be mistaken, or fail to elicit the truth.

But then those circumstances, should be strong in themselves, should each of them tend to throw light upon, and to prove each other, and the result of the whole, should be to leave no doubt upon the mind, that the offence has been committed; and that the accused, and no other, could be the person who committed it. Under these precautions, let the case of the prisoner be examined. The first we hear of him is at Baltimore, the owner of this vessel, and having it in contemplation to make a voyage, with a cargo belonging to one Butler and himself, to Porto Bello.

He procures her to be insured by the Baltimore Insurance Company, at 2,700 dollars, and the witness, who was his friend on the occasion, and appearing on the part of the prosecution, declares that she was fully worth that sum. What motive, then, could he have to destroy her? He would not only be a loser in respect of the value of the vessel, but all his objects of trade, and all the profits which he. no doubt anticipated, (for why else should he undertake the voyage?) would be thereby defeated.

In the next place, we find him insuring 12000 dollars on a cargo, appearing by the manifest, to be worth only 9,090 dollars. At first view, this appears an overvaluation, and consequently to afford a temptation to destroy the cargo. But since it does not appear, that the freight was insured, and since a man, without meditating a fraud, may wish to insure expected profits, he would probably be a loser even in respect of the cargo; or at any rate, there could exist little, if any temptation, to perpetrate the crime with which he is charged.

We then follow him from Baltimore into the West India seas, and find him in the possession of French privateersmen; whose conduct, if the witness be believed, would prove them rather to deserve the name of pirates, It appears, by the testimony of the same witness. that the whole of the cargo taken in at Baltimore, fell into the hands of these men, and you will judge, from his evidence, whether any, and what part, was taken out by them.

In about twenty hours after the prisoner and his crew were restored to the vessel, she was discovered to leak; the difficulty of freeing her increased; but yet we find, that in one hour, from eleven to twelve, she was freed; after which, every exertion was made in vain. It afterwards appeared, that the leak was produced by three holes bored in her bottom. These must have been made by the privateersmen, by Johns, or by some of his crew; because she was waterlogged when they abandoned her.

If by the privateersmen, it is extremely difficult to account for her not leaking, for so long a time after her liberation, and that the leak should increase in the proportion it did. without any new apparent cause. I say it is difficult to account for this, unless we suppose, that after making the holes, they were imperfectly filled up, and afterwards forced open in succession, by the pressure of the water. As to this, you must be the proper judges. Still it is not clear, that the prisoner made the holes.

The store room, it is true, communicated with the cabin; but it appears that the key generally remained in the door, and it is possible that opportunities may have offered for the crew to have done the act. These things are merely suggested for your consideration. It is not less difficult to account for the prisoner's conduct, after he saw his vessel in safety at St. Jago.

If he had not wished her destruction, nothing could have been more natural, than that he should imrnedi-ately have inquired into the circumstances by which his vessel had been saved; into the causes which had produced her supposed loss, and that he should have taken steps to reclaim her. Instead of this, he at no time called upon the salvor, but, on the contrary, he seems to have taken pains to avoid him. Whefa charged with being guilty of having done the act, and advised by his friend to clear it up, we find him contenting himself with a simple denial of the charge.

He never appeared at the sale of the vessel or cargo, or interposed a claim for either. His inconsistencies; at one time declaring that he was not insured; sometimes saying, that he had been plundered of goods to the amount of 6000 dollars; at another, of 12.000 dollars; his avoiding the company of the Americans; being denied to persons, who came after him: can with difficulty be reconciled with the character of fairness—whether with that of innocence, you must decide.

It is proper, however, to remark, that these circumstances do not necessarily prove more, than that he regretted the recovery of the vessel and cargo. • A man, whose property is fully, or more than covered, may not be sorry that it is lost; and yet he might be very far above the commission of a criminal act to produce the loss. It is for you to say, whether this construction should be given to his conduct. Upon the whole, you will weigh the evidence, and not convict the prisoner, if you doubt of his guilt. Jury found the prisoner not guilty.