The United States vs. Mitchel et al.

to a violent storm, which continued, with some intermissions, for some days. She suffered greatly in her masts and rigging, insomuch, that she was compelled to keep before the wind; and the winds continued so adverse, that it was stated by a witness, that it was not possible to make a port in the United States. The log-book strongly supported this statement. She went into St. Thomas, where she was unladen by order of the judge, upon a report of surveyors; and was prevented, by a general prohibition of the government of the island, from carrying away the cargo, which consisted of provisions. It appeared, by a certificate of the governor of the island, whose signature was proved, but to which there was no seal, which certificate was given at the time the petition of the captain was made to him, for leave to take away the cargo, that it was refused.

This certificate was objected to. By the Court. The certifi cate is of an official act, given at the time, by which it appears, that the captain had petitioned for leave to take away the cargo, which the governor refused. We know no way by which that fact could be better proved, than by this certificate, unless the deposition of the governor had been taken, which it is not to be supposed he would have consented to give. This is very different from evidence of matters not official, in which latter case, such a certificate could not be admitted.

The log-book, (which was not admitted at the former trial, Vol. II. p. 478,) was now admitted upon this additional evidence, that in relation to the cargo taken on board, the bills for landing at St. Thomas, were made out from this book, which the witness declared he was perfectly sure was the log-book kept on that voyage, though he did not recollect seeing the mate make entries regularly in it; and upon this further proof, that advertisements had been inserted in two papers in this city, shortly after the last trial, requesting information where the mate was, as by calling at a particular place, he would hear something to his advantage. This book is now better identifi

The United States vs. Mitchel et al.

ed, than it was at the last trial, and due diligence has been used to obtain better evidence than that of the mate himself, without success.

WASHINGTON, Justice, charged the jury. Something has been said, about the want of seaworthiness in this vessel. If sufficient proof of her want of seaworthiness for the intended voyage, has been given, to the satisfaction of the jury, it is fatal to the defence; because, the defendants, to entitle themselves to the excuse they set up, should clear themselves from all blame in respect to the accident which prevented their complying with the condition of the bond.

But, in respect to seaworthiness, the rule, in a case of forfei-. ture, must not be more rigid than is laid down in actions on policies of insurance; and that is, if the vessel, without any apparent and sufficient cause, begins to leak, and to show herself unfit to perform the voyage, the presumption is that she was not seaworthy when the voyage commenced; and the person who affirms she was so, must prove it by sufficient evidence. But, if a sufficient cause for her leaking is proved, as the existence of severe weather, as in this case; the burthen of proof is thrown upon the party who affirms that she was not seaworthy when the voyage commenced. Whether any such evidence has been given by the United States, you are to decide. The question is, not whether she was sufficiently staunch and strong, and found for any voyage, but for this voyage?

Another argument used by the District Attorney, was, that when the accidents happened, which compelled her to go before the wind, she ought to have returned to Philadelphia. If at this time it was apparent that she could not make a southern port, and that she could get into a more northern port, she cer tainly was bound to do so. This was formerly determined in a case in this Court; because, in that case, the vessel not being able to lay to the wind, so as to make a southern port, on account of the want of ballast, and having performVOL. III.

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The United States vs. Mitchel et al.

ed but a small part of her voyage, it was decided, that the master ought to have returned, and gone somewhere to supply his original omission. But in this case, there was no reason to suppose, that this vessel could not make a southern port, in consequence of the injury to her masts, nor does it appear, that she could not have done it, had the winds favoured. She had performed much the greatest part of her voyage, and was driven from the coast by westerly winds; so at least is the evidence. The law, in such a case, did not impose on the defendants the necessity of returning, so long as they could fairly hope, with favourable winds, to reach the port of their destination.

As to the facts of the case, the Court will only say, that if you credit the evidence given of them, the defendants have fully brought themselves within the exception provided in their favour.

Verdict for defendants.

The United States vs. Brockius.

THE UNITED STATES vs. BROCKIUS.

A person who had been convicted in the Court of this state, of an assault and battery with intent to murder, and sentenced to fine and imprisonment, is a competent witness.

If incompetency, produced by the conviction of a witness, depends on the punishment, and not the nature of the offence, yet where an infamous punishment, in the discretion of the Court, is not added, there is no disqualification, because it might have been inflicted, Fine and imprisonment is not an infamous punishment.

INDICTMENT for smuggling. One of the witnesses, in favour of the prosecution, was objected to, on the ground, that he had been convicted of an assault and battery with intent to murder, and had been sentenced to pay a fine, and to six months imprisonment, as appeared by the record produced in evidence.

Levy, for the defendant, read the following cases :-Co. Lit. 6. 13. Kel. 37-8. 2 Wils. 18. 2 Bac. 583. 4 Blac. Com. 217. 1 East's C. Law, 407.

Dallas read M'Nally, 206 et seq.

By the Court. The punishment of this offence at common law, is fine and imprisonment, and frequently the pillory is added; but it seems to be in the discretion of the Court. In lieu of the common law punishment of branding, whipping, and pillory, the penal code of this state, has substituted confinement and hard labour. Now, even if the incompetency produced by conviction, depended on the punishment, instead of the nature of the offence; where the infamous punishment forms no part of the sentence, there would be no disqualification, because it might have been inflicted. In this case, the punishment by

The United States vs. Brockius.

fine and imprisonment, is not to be considered as an infamous punishment, so as to render the witness incompetent.

The case was left to the jury, on the evidence, who found the defendant not guilty.

NOTE. Quere per Washington, whether, in any case, the statutary punishment, by confinement to hard labour, will destroy the competency of the witness, unless the crime is infamous?