UNITlilD STA.TES ,1.'. 'THE .HENRIETTA. ESCH· · ( 1 -' I ·
48a
UNITED STATES V. THE,lIENRIETTa ,ESCH.
(Circuit Court, 8. D. Alabama. '. -." .'. 'j
BlWIlGLING-CIROUHSTANTIAL EVIDENCB-CoNDEHNATION.
Where, in an action against a vessel for an attempt to smuggle foreign goods liable to ,(lustomsduties, 'there is an irreconcil1\ble' eciilfiict in the evidence given on the one side by the govemment ofiicers, and on:theother by the offlcers and part of the crew of the susPectlld vessel, and the case out, by the govern: ment witness shows-First, concealment on the part'of the captain and mate of the fact that the suspected vessel had come in through the pass; where, on an island said pass, the smuggled goods were found, instead of coming in by the main channel; 86C1Jnd, prevarications and misrepresentations excusing the fact that she had no boarding ofiicer aboard; third, absence of the yawl and all of the crew on the night of the seizure of the goods, together with,ftnding on the yawl mud and grass similar to that where the goodll were ,found; fourth, a splice?- oar produced in court, and found at. the place of the goods which a Witness identities as the same as that he saw the day previous on boaru and belonging to the vessel's yawl; fifth, finding on board the vessel, after seizure, goods of the same brand in small quantity in t,he possession -of the capto warrant the judgment of contain, with other circumstances, are demnation by the district court,and such judgment will be afiirmed.
On Appeal. George M. Duskin, U. S. Atty., fot the United States. Anderson Bond, for appellants. PARDEE, C. J. The oigars and cigarettes foUnd under a tarpaulin on the end of Pinto's island were undoubtedly foreign articles, brought there from some vessel to be smuggled intothtl United States. When found they evidently had not been there any great length of time. It seems clear, also, that they must have been brought, to the port of Mobile by the Zachary Taylor, the Henrietta Esch, or the Myra A. Pratt, for these were all the foreign vessels arriving from April 2 to April 14, 1879, the day when the cigars were seized.' The Zachary Taylor arrived on the twelfth of April, reported at the regular boardi!1S station at Fort Morgan, took on an inspector,and went directly to town. She wasearefuHy examined, and there is no suspicion in the record as to any illicit conduct on her part. The saIDe may be said, in substance, of the Myra A. Pratt, which arrived on the 14th, with the additional exculpating fact that she arrived after the time fixed by the witness Isadore Tranier of his discovery of the suspicious goods..The Henrietta Esch arrived early in the morning of the 13th. took on no boarding officer, having passed westwardly from Pensacola light-by Sand island-a.nd Mobile ba.r along the shore to
.. FEDElUa BIlPORTEB.
Horn island pass, and thence through that pass and Grant's pass to Mobile bay. She . a nchoredeadyiIUhe morning of the 13th, and lay for several hours near the place where the cigars were found before going to the wharf at Mobile. ,Sh far there is no conflict of testimony, and yet, from it, it seems clear that a case of strong suspicion is made against the Henrietta ESl)h. ' " . ..' , As to the balance of the case, I have examined and re-examinE;ld it, with the endeavor to reconcile th 13 lconflicting find ,the key which woul« to ,the ,tl'uthof thecitse. I find it impossible to harmonize the evidence. ,The witnesses, on one side or the other, have falsified; and their evidence on: one' side Avery, must be ,rejected. ' The evidenc,e of Captains and 'Terry is not in question. It may .be taken as true and correct and not affect the' case, because it is all negative in character andnot necessarily,inconsistent with the agairp3t the ,Il:enrl.etta Esch.' . . The real question comes the government witnesses and the captain, mate, and two boys of the schooner. mainly 'officers of the cusThe government beyond that toms, are not shown to have any interest in the naturally ari!,ing prop'erproseC'utiop qf, theirdutiea. ,Isadore Tranier, the discoverer of the gopd$, does not appear to have interest. The oapfilin of,tl;le]}sch and the cQlored boy, Johnson, ;are chargeable only withgenexal .inttjrest. in the on which they were· employed; and the mate and, his son are in the same, category, only mate is ope-half schooper implicated. ' And from here it may be noticed that two men were 01;\ the Kingston to Mobile·· Antonio Sylvestre, one of the crew;, andAntomo Sylvo, a sail<:>f' have not peen called. Sylvestre, it appears, run away when schqQner was j;jejzed... Sylvoisnot:accQunted for. t,he .government witnesses against the The case, ,as schooner,)n addition the point, e., that the could have cQwmitted the offenoe,Esch was ,the, [only shows:
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(1) ConceallI)ent on.the part of the Cl1ptain and mate of the faot that the Esch had gone to the and .come in through Grant's pass, instead of by the main channel; (2) prevarications and misrepresentations excusing the fact that the schooner had no boarding, officer aboard;, (3) ,abseJ;lce of the yawl and all of the crew of the 'Esch on 'the night of the seizure of the cigars, together with finding on the 'yawl'mud Bnd grass Similartd that where the cigars were found;.(4)&.spliced oar producedju court and found at the place
THOMPSON V. CANTERBURY.
of the cigars, which one witness, Samuels, identifies as the same spliced oar that he saw the day previous on board and belonging to the Esch's (5) finding on board the Esch, after the seizure of the cigars. cigars of the same brand in small quantity in the possession of the captain.
There are several of 'suspicious nature ones. shown, but the foregoing are The respondents meet these circumstances mainly by a vigorous denial either of the particular fact, or ,by a general denial that the Each brought the cigars. , The concealment of the schooner's course and the excuses made for not taking on a boarding officer are almost e:{ltirely unexplained. The absence of the yawl and crew is denied. Tha spliced oar ,is repudiated, and the fact that when siezed the Esch had only one oar for her yawl is 'explained by a circumstantial account given by all of the witnesses of the loss of an oar overboard in the gulf on the ,homeward voyage. The mud and grass on the yawl are accounted for by showing that the two boys had the boat in the day-time, rowing for pleasure in thEj harbor, making a landing at one where there was sand and grass. Nothing is said as to the particular brand of cigars given by the captain to his friends. Finding, as I have before, that the evidence on one side must rejected, I cannot avoid the conclusion that the evidence of the government witnes,ses is best entitled, under all the circumstances, to credence. This evidence, with that undisputed in relation to the opportunity.for the Esch to have unloaded the goods, and. thil!t .no other vessel.could have done so, makes a complete case for the government, and warrants the judgment of condemnation repdoo:ed by the distric,t court. A decree will therefore be entered affirming the judgment r.endered in this case by the district court, with costs.
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THOMPSON V. CANTERBURY,
Adm'r.
(Circuit Oouit, D. Iowa.
July, 1881.)
ESTATES OF DECEASED-CONTRACT OF ADMIXSTRATOR.
A contract with administrators or executors made in the interest and f(\r the benefit of the estate, if made upon a new and independent consideration, as for property sold and delivered, or other consideration moving between the promisee and executors as promisors, does not bind the estate, and a suit thereon against the administrator as such, and not personally, is demurrable, Doctrine applied to a case where the administrator sold and delivered a patented article for the benefit of the estate.
