WIBORG V. UNITED STATES, 163 U. S. 632 (1896)

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U.S. Supreme Court

Wiborg v. United States, 163 U.S. 632 (1896)

Wiborg v. United States

No. 986

Submitted May 18, 1896

Decided May 25, 1896

163 U.S. 632


The several acts described in and made punishable by Rev.Stat. § 5286, are stated therein separately and disjunctively, connected by the conjunction "or." The indictment in this case, charging that the defendants committed some of those acts, connects them by the conjunction "and." No question of duplicity was raised by the defendants' counsel. The trial judge instructed the jury that the evidence would not justify a conviction of anything more than providing the means for, or aiding the military expeditions set forth in the indictment, by furnishing transportation for their men, etc. Held that the verdict could not be disturbed on the ground that more than one offense was included in the same count of the indictment.

Providing, or preparing the means of transportation for such a military expedition or enterprise as is referred to in Rev.Stat. § 5286 is one of the forms of provision or preparation therein denounced.

A hostile expedition, dispatched from a port of the United States, is within the words "carried on from thence."

A body of men went on board a tug in a port of the United States, loaded with arms; were taken by it thirty or forty miles and out to sea; met a steamer outside the three mile limit by prior arrangement; boarded her with the arms, opened the boxes and distributed the arms among themselves; drilled to some extent; were apparently officered, and then, as preconcerted, disembarked to effect an armed landing on the coast of Cuba when the United States were at peace with Spain. Held that this constituted a military expedition or enterprise within the provisions of the Revised Statutes.

On the question whether the defendants aided the expedition with knowledge of the facts, the jury were instructed that they must acquit unless they were satisfied beyond reasonable doubt that defendants, when they left Philadelphia, had knowledge of the expedition and its objects and had arranged and provided for its transportation. Held that the defendants had no adequate ground of complaint on this branch of the case.

A statement of facts by the court in a recapitulation of the evidence, based on uncontradicted testimony, no rule of law being incorrectly stated and the facts being submitted to the determination of the jury, is not open to exception.

The ruling in Simmons v. United States, 142 U. S. 148, that

"the judge presiding at a trial, civil or criminal, in any court of the United States, may express his opinion to the jury upon the questions of fact which he submits

Page 163 U. S. 633

to their determination"

applied to statements by the court below in its charge in this case.

Assuming that a secret combination between the party and the captain or officers of the Horsa had been proven, then, on the question whether such combination was lawful or not, the declarations of those engaged in it explanatory of acts done in furtherance of its object were competent.

Where a plain error has been committed in a matter vital to defendants, this Court is at liberty to correct it, although the question may not be properly raised, and being of opinion that adequate proof of guilty knowledge or participation on the part of the mates is not shown by the record, it reverses the judgment as to them, although no exception was taken.

Wiborg, the captain, and Petersen and Johansen, the mates, of the steamer Horsa, were indicted in the District Court of the United States for the Eastern District of Pennsylvania, under section 5286 of the Revised Statutes. The indictment charged that defendants,

"mariners at the district aforesaid, and within the jurisdiction of this Court, did, within the territory and jurisdiction of the United States, to-wit at the port of Philadelphia, Pennsylvania, within the district aforesaid, begin, set on foot, and provide and prepare the means for a certain military expedition and enterprise to be carried on from thence against the territory and dominions of a foreign prince, to-wit, against the Island of Cuba, the said Island of Cuba being then and there the territory and dominions of the King of Spain, the said United States being then and there at peace with the King of Spain, contrary to the form of the act of Congress in such case made and provided, and against the peace and dignity of the United States of America."

They were tried before Judge Butler and a jury, and convicted. Motions in arrest of judgment and for a new trial were severally made and overruled, and defendants were sentenced to pay fines and to serve terms in the state penitentiary. This writ of error was thereupon sued out, and defendants admitted to bail.

The Horsa was a Danish steamer, sailing under the Danish flag, and defendant Wiborg, its captain, was a subject of the King of Denmark, as were also his codefendants, as claimed by their counsel. chanrobles.com-red

Page 163 U. S. 634

The Horsa was engaged in the fruit business for John D. Hart & Company, of Philadelphia, and on November 9, 1895, cleared from Philadelphia for Port Antonio, Jamaica. She had on board but little cargo, consisting of two lifeboats, a lot of empty boxes and barrels, two horses, some horse feed, bales of hay, and boxes of corn, all of which were entered on her manifest. Just before sailing, Capt. Wiborg received a message (in writing, but not produced) which, he said, was: "After I passed the breakwater, to proceed north near Barnegat and await further orders." The Horsa sailed between six and seven p.m., and, after passing the Delaware breakwater, her proper course would be southward. She turned, however, to the northward, went up the Jersey coast to Barnegat Light, and anchored on the high seas, between three and four miles off the shore. Between ten and eleven the same evening, the steam lighter J. S. T. Stranahan sailed from Brooklyn, carrying some cases of goods and two lifeboats, which had been put on board by the crew of the lighter during the evening. On the lower bay of New York, below Staten Island, during the night, she took on board between thirty and forty passengers, mostly dark-complexioned men, speaking a foreign language, apparently Cubans or Spaniards. The lighter then ran down to Barnegat, where she saw the Horsa under a white flag. She also ran up a white flag, went alongside, and put aboard her passengers, with the cases of goods and the lifeboats. They brought authority in writing from John D. Hart & Company, which was not produced. Captain Wiborg saw the transfer made, and assented to it. His firemen complaining, he answered: "I told them, if anybody had to hang for this, I would be the man to hang for it." He testified that the man on the lighter brought him a message from John D. Hart & Company.

"He told me to take those men and luggage and whatever they had aboard the Horsa, and let them off whenever they called for it to be let off. I shipped two boats at the same time, and the order of my message was to deliver those two boats to those men, and the two boats that I had shipped here in Philadelphia. . . . The only order was they had a colored man there that they

Page 163 U. S. 635

called the 'pilot,' and whenever he called for them to be let off, I should let them off, and give them the boats."

As to the boats taken on at Philadelphia and those taken on off Barnegat, he was

"to deliver them to these men as soon as they called for them. . . . The pilot did not tell me where he was going. I did talk to him, but he could talk very little English."

The captain testified that the writing from J. D. Hart & Company "to take whatever was in the tug, the men and their luggage and boxes, and let them off whenever they called for it to be let off," did not strike him as an unusual thing. It did not strike him as unusual "that these men were to be taken on board, and turned out on the sea with the boats." It appeared and was admitted that there was an insurrection in Cuba. T he captain was informed that the party was going to Cuba, and believed the men were going to fight for Cuba, but was careful to ask no questions, and testified that he considered his own part in the affair to be lawful. The charter party was not produced.

After boarding the Horsa, these persons broke open the boxes which they had brought with them, and took out rifles, swords, and machetes, and one cannon. They also had cartridge belts, medicines, and bandages with them. They were not in uniform, but there was evidence that some of them had caps with a little flag, which they said was a Cuban flag. They brought their own food with them. The evidence tended to show that when these men divided up the arms, every man had a rifle; that certain of them, understood to be officers, had swords and revolvers; that one seemed to be in command of them, and that this commander asked some of the crew whether they would fight if attacked by a Spanish gunboat. There was also some evidence that there were military exercises in the nature of drilling by from three to seven men at a time; that these persons stated that they were going to Cuba to fight the Spaniards; that, on the second day out, they made small canvas bags to put cartridges in, and unpacked a bale of blankets which they had brought with them, wrapped one hundred and fifty spare rifles in these blankets in small bundles, about five in each, and threw the chanrobles.com-red

Page 163 U. S. 636

boxes overboard in which the rifles had come, taking a rifle, sword, and machete apiece, and practicing with them and the cannon. There were three kinds of cartridges and two kinds of rifles. One witness stated that, as he was informed by them, there were small Winchesters for the cavalry, and big rifles for the infantry; big revolvers for the officers, and that the cannon was a Maxim gun, in charge of a French Canadian. This machine gun was worked with a slot and a crank, and had its own cartridges. The witness saw it worked, and saw them practicing with it, and the man in charge showed him how they were doing it. Some testimony was introduced on behalf of defendants to the effect that a machete is generally carried by the inhabitants of the West Indies, and has many peaceful uses. One of the defendants' witnesses admitted that it was a formidable weapon, and, moreover, that he had never seen citizens carry guns in Cuba. It is unquestioned that the machete is used for both war and peace, it being described in the Century Dictionary as a "heavy knife or cutlass, used among Spanish colonists and Spanish American countries both as a tool and as a weapon," and by Webster as

"a large, heavy knife, resembling a broadsword, often two or three feet in length, used by the inhabitants of Spanish America as a hatchet to cut their way through thickets and for various other purposes."

After leaving Barnegat, the Horsa took the usual course for Jamaica, which follows he Cuban coast for about six hours. The usual color of her funnel was yellow below with red above and black on top, and it was so painted when she left Philadelphia. While she was at sea, the funnel was repainted red and black, and, when she returned to Philadelphia, it was black, red, and yellow. The name of the Horsa was painted out amidships, but her name was on the stern in brass letters and on the bow, and those letters were not painted over to the captain's knowledge. About six miles off the coast of Cuba, the colored pilot gave orders to disembark. This was about eleven o'clock at night, and the disembarkation was conducted under the supervision of Captain Wiborg, who had the lights of the vessel put out. The two boats chanrobles.com-red

Page 163 U. S. 637

were launched which had come on board at Philadelphia, and also those which had come with the lighter, and Captain Wiborg sold the men one of the ship's boats. As one of the boats leaked, another was lowered from the ship. The passengers took to the boats, taking with them all the ammunition and arms they could carry. The steamer then undertook to tow the boats, but a strange light was seen in the distance, and at the request of the men, the captain cut the boats loose, and started away at full speed. Some forty boxes of cartridges had been left on the Horsa because there was no room for them on the boats, and Captain Wiborg directed that these should be thrown overboard. He said this was to avoid getting into trouble at Port Antonio, since the boxes were not manifested for that port. The Horsa then completed her voyage to Port Antonio. The captain said he told the collector there he had lost two boats, "to put him off his guard."

Defendants' counsel requested the court to give to the jury thirteen points or instructions, of which the fourth, fifth, sixth, seventh, eighth, ninth, and eleventh were as follows:

"4. That the laws of the United States and the section under which the defendants are indicted do not prohibit transporting of arms or of military equipments to a foreign country, or forbid one or more individuals, singly or in unarmed association, from leaving the United States for the purpose of joining in any military operations which are being carried on between other countries, or between different parties in the same country."

"5. That before the jury can find the defendants guilty under this indictment, they must first find that there was a 'military expedition or enterprise' against the territory of the King of Spain. A military expedition or enterprise does not exist unless there is a military organization of some kind, designated as infantry, cavalry, or artillery and officered and equipped for active hostile operations."

"6. That if the jury find that there were transported on board of the Horsa arms and men, but the same were not a 'military organization as infantry, cavalry, or artillery, and

Page 163 U. S. 638

officered and equipped, or in readiness to be officered and equipped,' then the jury must find the defendants not guilty."

"7. That it is not an offense against the laws of the United States for a shipper to ship arms to a foreign country, or for volunteers to go to a foreign country for the purpose of joining in military operations which are being carried on between other countries or between different parties in the same country. In such cases, the shipper and volunteer would run the risk, the one of capture of his property, and the other of the capture of his person by the foreign power, but the master of the ship transporting such arms and volunteers, not being a military expedition or enterprise, would not commit any offense against the laws of the United States, and would not be liable under this indictment."

"8. That if the jury find from the evidence in this case that the officers of the steamship Horsa took on board, off the coast of New Jersey, on the high seas, a number of men, all dressed as citizens, without arms and equipments on their persons, and at the same time took on board certain boxes of arms and ammunition and munitions of war, but that the said men were not organized as infantry, cavalry, or artillery or ready for such organization, the jury are instructed that they must find the defendants not guilty, even if the jury believe that the passengers on board intended to enlist, on arrival in Cuba, in the Cuban army."

"9. That if the jury find from the evidence that the defendants took on board their vessel, off the New Jersey coast, a number of men, unarmed and not organized either as infantry, cavalry, or artillery, and at the same time took on board boxes of ammunition and arms, the jury are instructed that they must find the defendants not guilty, even if the jury should believe that the men intended upon arrival in Cuba to enlist in the Cuban army and that the boxes of arms were intended for use in the Cuban army."

"11. That if the jury find from the evidence that the passengers and boxes of arms did not constitute a military expedition or enterprise, but that the said passengers were simply going to Cuba to enlist in either army, and the said

Page 163 U. S. 639

arms and ammunition were being conveyed to Cuba to be used by either army, then the jury are instructed that the defendants, in transporting them in due course of their business, committed no offense against the laws of the United States, and the jury are further instructed that all evidence of secrecy, such as taking on the passengers and boxes of arms on the high seas and putting out the lights off the coast of Cuba, were acts which the defendants might lawfully do to avoid the capture of the passengers and the capture of the property from off their ship by Spanish men of war; but under such circumstances, if the jury find there was no military expedition or enterprise, such acts would not of themselves be evidence of any intent to violate the statute of the United States under which the defendants are indicted."

The court charged the jury, explaining the indictment, and then continued as follows:

"The evidence heard would not justify a conviction of anything more than providing the means for or aiding such military expedition by furnishing transportation for the men, their arms, baggage, etc. To convict them, you must be fully satisfied by the evidence that a military expedition was organized in this country, to be carried out as and with the object charged in the indictment, and that the defendants, with knowledge of this, provided means for its assistance, and assisted it, as before stated."

"Thus, you observe the case presents two questions: first, was such military expedition organized here in the United States?; secondly, did the defendants render the assistance stated here with knowledge of the facts?"

"In passing on the first question, it is necessary to understand what constitutes a military expedition within the meaning of the statute. For the purposes of this case, it is sufficient to say that any combination of men organized here to go to Cuba to make war upon its government, provided with arms and ammunition, we being at peace with Cuba, constitutes a military expedition. It is not necessary that the men shall be drilled, put in uniforms, or prepared for efficient service, nor that they shall have been organized as, or according

Page 163 U. S. 640

to the tactics or rules which relate to, what is known as infantry, artillery, or cavalry. It is sufficient that they shall have combined and organized here to go there and make war on the foreign government, and have provided themselves with the means of doing so. I say 'provided themselves with the means of doing so' because the evidence here shows that the men were so provided. Whether such provision, as by arming, etc., is necessary need not be decided in this case. I will say, however, to counsel, that were that question required to be decided, I should hold that it is not necessary."

"Nor is it important that they intended to make was as an independent body or in connection with others. Where men go without combination and organization to enlist as individuals in a foreign army, they do not constitute such military expedition, and the fact that the vessel carrying them might carry arms as merchandise would not be important."

Taking up defendants' thirteen points, the court disposed of them as follows:

"1. It is not a crime or offense against the United States under the neutrality laws of this country for individuals to leave this country with intent to enlist in foreign military service; nor is it an offense against the United States to transport persons out of this country and to land them in foreign countries when such persons have an intention to enlist in foreign armies."

"As a general proposition, this is true, and the point is affirmed."

"2. It is no offense against the laws of the United States to transport arms, ammunition, and munitions of war from this country to any other foreign country, whether they are to be used in war or not; that in such case the shipper and transporter of the arms, ammunition, and munitions of war only run the risk of the capture and seizure of such arms and contraband of war by the foreign power against whom they are intended to be used; but this does not make it an offense against the laws of the United States, and for such cause the defendants cannot be held guilty."

"This is also true. No military expedition would exist in such case. "

Page 163 U. S. 641

"3. That it is no offense against the laws of the United States to transport persons intending to enlist in foreign armies and arms and munitions of war on the same ship; that in such case, the persons transported and the shipper and transporter of the arms run the risk of seizure and capture by the foreign power against whom the arms were to be used, and against whom the persons and passengers intended to enlist, but such cause did not constitute an offense against the laws of the United States, and for such cause the defendants cannot be found guilty."

"This is true provided the persons referred to herein had not combined and organized themselves in this country to go to Cuba, and there make war on the government. If they had so combined and organized, and yet intended when they reached Cuba to join the insurgent army, and thus enlist in its service, and the arms were taken along for their use, they would constitute a military expedition as before described, and the transportation of such body of persons from this country for such a purpose would be an offense against the statute."

"The fourth, fifth, sixth, seventh, eighth, and ninth points are fully answered by what has been said."

"10. Even if the jury do find that the men taken on board were an organized military force, with officers, as infantry, cavalry, or artillery, the jury cannot find the defendants guilty unless the jury also find that the defendants knew that they were such a military organization as infantry, cavalry, or artillery, constituting a military expedition or enterprise against the Kingdom of Spain."

"As before stated, to justify conviction of the defendants, the jury must be fully satisfied that the defendants knew that the men constituted a military expedition such as I have described."

"The eleventh point has been fully answered by what the court has said."

"The twelfth point is a very important point, and is as follows:"

"12. If the jury find that when the defendants left Philadelphia,

Page 163 U. S. 642

and until after they had passed beyond the jurisdiction of the United States, they were ignorant of the fact that they were to transport the men in question, with their arms and provisions, and find that the point off Barnegat where the men in question were taken aboard was beyond the jurisdiction of the United States -- in other words, beyond the three-mile limit -- and find that the vessel was sailing under a Danish flag, then and in that case they will find the defendants not guilty."

"This point raises the question whether the defendants committed an offense against the statute if the only aid which they furnished the expedition was furnished out at sea, beyond the jurisdiction of this country, and I instruct you that if the only aid furnished the vessel, being a foreign vessel, was so beyond our jurisdiction, they did not commit an offense, and must consequently be acquitted. They allege that the point off Barnegat where the men were taken on board was not within three miles of our shore. If this is true, and the defendants did not start from our shore under an agreement to provide the means for transporting and to transport the men, but were ignorant of the object of going to Barnegat until they reached there, they cannot be convicted."

"If, however, they entered into an arrangement here to furnish and provide the means of transportation, and provided it, they are guilty, if this was a military expedition, although the men were not taken aboard and the transportation did not commence until the ship anchored off Barnegat."

"13. It is the duty of the government to satisfy the jury beyond a reasonable doubt that the men and arms and ammunition taken on board the steamship Horsa was a military expedition or enterprise from the United States against the Kingdom of Spain, and also that the defendants knew or shut their eyes to the fact that it was a military expedition or enterprise from the United States against the Kingdom of Spain, and if the jury have from the testimony any reasonable doubt upon either of these questions or facts, the jury will find the defendants not guilty. "

Page 163 U. S. 643

"This point is affirmed. I trust the jury understand it. To convict the defendants, it is necessary that the government shall have satisfied your minds beyond a reasonable doubt that this was a military enterprise, and that the defendants, when they started, knew it; otherwise, they are not guilty."

The court then further recapitulated and commented on the evidence, and, in the course of doing so, said:

"Some of them who were able to speak English declared that they were Cubans going to Cuba to fight the Spanish, and if these men were in combination to do an unlawful act, what was said by any of them at the time in carrying out their purpose was evidence against them all as to the nature of the expedition. . . ."

"That this was a military expedition, designed to make was against the government of Spain, would seem to the court to be free from reasonable doubt. The question, however, is one for your determination alone, and I submit it to you as such, reminding you that the responsibility of deciding it rests upon you only. If you find that this was not a military expedition, or, rather, if you are not fully satisfied that it was, your verdict will be for the defendants, without going further. If, on the other hand, you find that it was a military expedition intended to make war against the government of Cuba, then you must pass upon the second question stated, to-wit: did the defendants, with knowledge of the facts, aid in carrying out its purpose in going to Cuba? They transported the men with their arms, ammunition, and provisions. Did they enter upon this service here with the knowledge of the fact that the men constituted a military expedition, to fight against the government of Cuba? . . . From this and any other testimony bearing on this subject, you must determine whether they understood what the expedition and its objects were, and had arranged and provided for its transportation, when they left Philadelphia or left our shores within the three-mile limit stated. If they were ignorant on this subject until they anchored off Barnegat Light, the point being, according to the testimony, beyond the jurisdictional limits of the United States,

Page 163 U. S. 644

no offense was committed, as I have before stated, against the laws of this country."

"The question therefore is did the defendants understand they were to carry this expedition, and had provided for it, and understand what the expedition was, before leaving here? As you have seen, they took on two extra boats before starting, and cleared for Port Antonio, Jamaica, and turned off of their course at the breakwater (the captain explaining this, to which explanation you will give whatever weight you deem it to be worth). When the men came to the ship off of Barnegat, there is no evidence that the captain or any one of the defendants expressed or exhibited any surprise. It was then manifest that the service required was to carry men and arms to Cuba (the captain says he then so understood it) -- a most hazardous undertaking. Is it probable that the defendants would have risked themselves and their ship in this service if they had not been prepared for it by previous arrangement, and have done it without demurring or hesitating? Again, is it likely that those in charge of the expedition would have risked bringing the men and the property to that point on the mere chance that the defendants would take the risk of carrying them and the property to Cuba without arranging for it beforehand? If the defendants had refused, as it was their right to refuse (and it would seem certain or at least extremely probable that they would refuse this most hazardous service if previous arrangement had not been made), what would have been the situation of the men and the property? The expedition would have failed. The men would have been subject to arrest, and the property to sacrifice. Is it probable that those in charge of such an enterprise would take the men and property to this point without having secured certain means of transportation for it in advance? The captain says he was ignorant of the service required of him until he reached the point near Barnegat. You must judge whether he should be believed or not, and, from all the evidence, must determine whether the defendants left here with knowledge of and provision for what they were about to do."

"I now submit the case to you, reminding you of its importance.

Page 163 U. S. 645

If the evidence of the defendants' guilt is not entirely clear, they should be acquitted. If it is thus clear, they should certainly be convicted. No sympathy or prejudice must be allowed to influence your minds in passing on this case. We have nothing to do with the controversies between the people of Cuba and the government of that island. We are concerned only with the execution of the law in this case. We have only to consider whether the statute to which your attention has been called has been violated. It is our duty to see that the law is honestly and justly executed -- that is all. The peace and safety of the community so manifestly depend upon the faithful and honest administration of the law that no man can fail to see it. We are suffering today, as probably no other people suffers, from lawlessness, from mobs, lynch law, murder, violation of trusts, as the result of want of faithfulness in executing the law."

"You will take the case, and decide it, with a careful regard to the rights of the defendants."

73 F.1d 9.

No motion or request was made that the jury be instructed to find for defendants or either of them.

Defendants excepted "to that part of the charge of the court giving the definition of a military expedition;" to the refusal of the court "to read the points that were not read to the jury," "to affirm all the points without qualification," and "to affirm each point without qualification;" to "the statement of the court that, in its opinion, this was a military expedition," and "that the men were armed;" to "the failure of the court to comment on the evidence on behalf of the defendants;" to the statements "of the court in reference to the reasons, motives, purposes, and acts of the defendants," "that the defendants did not express surprise that the men came on the vessel off Barnegat," and "that the declarations of the men on the ship to the witnesses for the government were evidence against the defendants;" also, to the statements

"that even if an agreement to furnish and provide the means of transportation was made within the jurisdiction of the United States to carry on a military expedition, which was not consummated until they got outside of the three-mile

Page 163 U. S. 646

limit, that constituted an offense against the laws of the United States,"

and "that the acts and declarations of the Cubans themselves were evidence against them all as to the nature of the expedition."

The motion in arrest was based on the alleged want of jurisdiction of the court. Errors were assigned to the giving, refusing, and qualification of instructions, to the admission in evidence of declarations of some of the party, during the voyage, as to their destination, and to the overruling of defendants' motion in arrest of judgment, for want of jurisdiction.


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