United States v. Gooding
25 U.S. 460

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U.S. Supreme Court

United States v. Gooding, 25 U.S. 12 Wheat. 460 460 (1827)

United States v. Gooding

25 U.S. (12 Wheat.) 460

Syllabus

Upon an indictment under the slave trade act of 20 April, 1818, ch. 373, against the owner of the ship, testimony of the declarations of the master, being a part of the res gestae connected with acts in furtherance of the voyage and within the scope of his authority as agent of the owner in the conduct of the guilty enterprise is admissible in evidence against the owner.

Upon such an indictment against the owner charging him with fitting out the ship with intent to employ her in the illegal voyage, evidence is admissible that he commanded, authorized, and superintended the fitment through the instrumentality of his agents, without being personally present.

It is not essential to constitute a fitting out under the acts of Congress that every equipment necessary for a slave voyage, or any equipment peculiarly adapted to each a voyage, should be taken on board; it is sufficient if the vessel is actually fitted out with intent to be employed in the illegal voyage.

In such an indictment it is not necessary to specify the particulars of the fitting out; it is sufficient to allege the offense in the words of the statute.

Nor is it necessary that there should be any principal offender to whom the defendant might be aiding and abetting. These terms in the statute do not refer to the relation of principal and accessory in cases of felony; both the actor and he who aids and abets the act, are considered as principals.

It is necessary that the indictment should aver that the vessel was built, fitted out, &c., or caused to sail, or be sent away within the jurisdiction of the United States.

An averment that the ship was fitted out, &c. "with intent that the said vessel should be employed" in the slave trade is fatally defective, the words of the statute being, "with intent to employ" the vessel in the slave trade, and exclusively referring to the intent of the party causing the act.

Objections to the form and sufficiency of the indictment may, in the discretion of the court, be discussed and decided during the trial before the jury, but generally speaking they ought regularly to be considered only upon a motion to quash the indictment or in arrest of judgment or on demurrer.

In criminal proceedings, the onus probandi rests upon the prosecutor, unless a different provision is expressly made by statute.

Page 25 U. S. 461

This was a prosecution in the Circuit Court of Maryland against the defendant, Gooding, under the Slave Trade act of 20 April, 1818, ch. 373. The indictment alleged (1) that the said Gooding, being a citizen of the United States, after the passing of the act of the Congress of the United States entitled

"An act addition to an act to prohibit the introduction of slaves into any port or place within the jurisdiction of the United States from and after the first day of January in the year of our Lord 1808 and to repeal certain parts of the same,"

that is to say, after 20 April, 1818, to-wit, on 30 September, 1824, at the District of Maryland, did fit out for himself, as owner, in the port of Baltimore, within the jurisdiction of the United States and within the jurisdiction of this Court, a certain vessel called the General Winder with intent to employ the said vessel, the General Winder, in procuring negroes from a foreign country, to-wit, from the continent of Africa, to be transported to another place, to-wit, to the Island of Cuba in the West Indies, to be sold as slaves contrary to the true intent and meaning of the act of Congress in such case made and provided, to the evil example of all others in like case offending, and against the peace, government, and dignity of the said United States.

2. That the said Gooding, a citizen of the said United States and residing therein, to-wit, at the district aforesaid, after the passing of the act of Congress aforesaid, to-wit on the day and year last aforesaid, within the jurisdiction of this Court, at the district aforesaid, did, for himself, as owner, send away from the port of Baltimore, within the jurisdiction of the United States, a certain other vessel, called the General Winder, with intent to employ the said vessel, the General Winder, in procuring negroes from a foreign country,

Page 25 U. S. 462

to-wit, from the continent of Africa, to be transported to another place, to-wit, to the Island of Cuba, to be sold as slaves, contrary to the true intent and meaning of the act of Congress in such case made and provided, to the evil example of all others in like case offending, and against the peace, government, and dignity of the United States.

3. That the said Gooding, a citizen of the said United States, and residing therein, after the passing of the act of Congress aforesaid, to-wit, on the day and year last aforesaid, at the district aforesaid, and within the jurisdiction of this Court, did aid in fitting out for himself as owner, in the port of Baltimore, within the jurisdiction of the United States, to-wit, at the district aforesaid, a certain other vessel, called the General Winder, with intent that the said vessel, the General Winder, should be employed in procuring negroes from a foreign country, to-wit, from the continent of Africa, to be transported to another place, to-wit, to the Island of Cuba, to be sold as slaves, contrary to the true intent and meaning of the act of Congress in such case made and provided, to the evil example of all others in like case offending, and against the peace, government, and dignity of the said United States.

4. That the said Gooding, a citizen of the said United States, and residing therein, after the passing of the act of Congress aforesaid, to-wit, on the day and year last aforesaid, at the district aforesaid and within the jurisdiction of this Court, did abet the taking on board from one of the coasts of Africa divers negroes, to-wit, 290, not being inhabitants nor held to service by the laws of either of the states or territories of the United States, of a certain other vessel, called the General Winder, for the purpose of selling such negroes as slaves, contrary to the true intent and meaning of the act of Congress in such case made and provided, to the evil example of all others in like case offending, and against the peace, government, and dignity of the said United States.

5. That the said Gooding, a citizen of the United States and residing therein after the passing of the act of Congress aforesaid, to-wit, on the day and year last aforesaid at the district aforesaid and within the jurisdiction of this Court,

Page 25 U. S. 463

did, for himself as owner, cause to sail from the port of Baltimore, within the jurisdiction of the United States, a certain other vessel called the General Winder, with intent that the said vessel, the General Winder, should be employed in procuring negroes from a foreign country, to-wit, from the continent of Africa, to be transported to another place, to-wit, to the Island of Cuba, to be sold as slaves contrary to the true intent and meaning of the act of Congress in such case made and provided, to the evil example of all others in like case offending, and against the peace, government, and dignity of the said United States.

6. That the said Gooding, a citizen of the United States, and residing therein, after the passing of the act of Congress aforesaid, to-wit, on the day and year last aforesaid, at the district aforesaid and within the jurisdiction of this Court, did, for himself as owner, cause to be sent away from the port of Baltimore, within the jurisdiction of the United States, a certain other vessel, called the General Winder, with intent that the said vessel, the General Winder, should be employed in procuring negroes from a foreign country, to-wit, from the continent of Africa, to be transported to a certain other place, to-wit, to the Island of Cuba, to be sold as slaves, contrary to the true intent and meaning of the act of Congress in such case made and provided, to the evil example of all others in like case offending, and against the peace, government, and dignity of the said United States.

7. That the said Gooding, a citizen of the United States and residing therein, after the passing of the act of Congress aforesaid, to-wit, on the day and year last aforesaid, at the district aforesaid and within the jurisdiction of this Court, did for himself as owner or for other persons as factor fit out, equip, load, or otherwise prepare a certain other ship or vessel called the General Winder, in the port of Baltimore, within the jurisdiction of the United States, to-wit, at the district aforesaid, or did cause the same ship or vessel, the General Winder, to be so fitted out, equipped, loaded, or otherwise prepared, with intent that the said ship or vessel, the General Winder, should be employed in procuring negroes, mulattoes, or persons of color, from a foreign kingdom, place or country, to-wit, from the continent of Africa, to be transported to another port or place, to-wit, to

Page 25 U. S. 464

the Island of Cuba, in the West Indies, to be there sold or otherwise disposed of as slaves or held to labor or service contrary to the true intent and meaning of the act of Congress in such case made and provided, to the evil example of all others in like case offending and against the peace, government and dignity of the said United States.

At the trial in the circuit court, the United States offered evidence that the defendant purchased of one McElderry the vessel called the General Winder, in the indictment mentioned, and that said vessel was built in the port of Baltimore, also in the said indictment mentioned. They further offered in evidence that at the time said purchase was made, the said vessel was not completely finished, and that the same was finished under the superintendence of a certain Captain John Hill, who was appointed by the defendant master of said vessel on her then intended voyage. They also offered in evidence that the defendant was, at the time when the offense laid in the indictment is charged to have been committed and at the time of his purchase of the said vessel and ever since has been a citizen of the United States, and has constantly, from the time of the purchase of the said vessel till the present period, been an actual resident of the said port of Baltimore.

They further offered evidence that after the said purchase and after the appointment of the said captain Hill as master as aforesaid, the said Hill ordered various fitments for the said vessel at the said port of Baltimore, which said fitments were furnished for said vessel and afterwards on the order of said Hill were paid for by the defendant. They also offered in evidence that some of these fitments were peculiarly adapted for the slave trade, and are never put on board any other vessels than those intended for such trade; a part of such fitments so ordered by captain Hill and paid for by the defendant, to-wit, three dozen of brooms, eighteen scrapers, and two trumpets, were actually put on board the General Winder in the port of Baltimore, the residue of the equipments on board the General Winder at the time of her departure being such as are usual on board vessels carrying on trade between said port and the West Indies. And the rest of such fitments, peculiar to the slave trade as

Page 25 U. S. 465

aforesaid, were shipped at the said port of Baltimore on board another vessel called the Pocahontas, chartered by the defendant. That the said vessel called the General Winder, sailed from the port of Baltimore, fitted as aforesaid and with the said Hill as master, on or about the twenty-first day of August, eighteen hundred and twenty-four, having cleared for the Island of St. Thomas in the West Indies. That the other vessel called the Pocahontas also sailed for St. Thomas from the port of Baltimore with the part of the said fitments put on board her as before mentioned, sometime in the month of September following. They also gave evidence that both the said vessels, the General Winder and the Pocahontas, afterwards arrived at St. Thomas, and that at that island the said peculiar fitments shipped as aforesaid in the Pocahontas were there transshipped from said vessel to the General Winder, the said Hill still being the master of the said last mentioned vessel. They also further offered in evidence that the defendant, about six or seven months after the sailing of the General Winder from the said port of Baltimore, declared in the presence of a competent witness that the General Winder had made him a good voyage, having arrived with a cargo of slaves, the witness thought he said 290, and that he also declared in the presence of the same witness at another time that he, the defendant, was the sole owner of the said vessel, called the General Winder. They also offered in evidence by another witness that the defendant had at another time declared in the presence of this other witness that the said witness, who was a creditor of the defendant, should be paid one-half his debt on the arrival of the General Winder at Trinidad de Cuba. The United States, further to support the said indictment, offered to give in evidence to the jury by a certain Captain Peter L. Coit that he, Captain Coit, was at St. Thomas while the General Winder was at that island as before stated, in September, 1824, and that he was frequently on board the said vessel at that time at St. Thomas; that the said Captain Hill the said master of the General Winder then and there proposed to the said witness, Captain Coit, to engage on board the General Winder as mate for the voyage

Page 25 U. S. 466

then in progress, and described the same to be a voyage to the coast of Africa for slaves and thence back to Trinidad de Cuba. That he offered to the said witness 70 dollars per month, and five dollars per head for every prime slave which should be brought to Cuba. That on the witness' inquiring who would see the crew paid in the event of a disaster attending the voyage, Captain Hill replied, "uncle John," meaning (as witness understood) John Gooding, the defendant.

The defendant's counsel objected to the admissibility of this evidence, and the judges divided in opinion upon its admissibility. They also moved the Court for its opinion upon the following points:

1. That on the charges contained in the lst, 2d, 3d, 5th and 6th counts in the indictment, it is incumbent on the United States to prove that the vessel, named or mentioned in the indictment was fitted out, sent away, caused to sail, or caused to be sent away with intent to transport negroes from the coast of Africa to the Island of Cuba.

2. That evidence that the defendant caused the vessel in question to be fitted out by Captain John Hill or anyone else will not support the first count in the indictment, in which he is charged with fitting her out himself.

3. That the first count charges a fitting out in the port of Baltimore, which, according to the true legal interpretation of the words in an indictment, means a complete equipment, and that evidence of a partial preparation here and a further equipment at St. Thomas will not support the charge contained in this count.

4. That the defendant cannot be convicted on the first count, because no offense is legally charged in the said count, it being necessary to specify the particular equipments in the indictment in order that the defendant may have notice of the particular charge against him.

5. That the defendant cannot be convicted upon the third and fourth counts because these counts do not charge any offense to have been committed by any principal to whom the defendant was or could be aiding or abetting; also that he cannot be convicted upon the fourth count unless he was actually or constructively present when the negroes were

Page 25 U. S. 467

taken on board on the coast of Africa, and if the defendant was in Baltimore at the time the said negroes were taken on board on the coast of Africa, he could not aid or abet within the meaning of the fourth section of the Act of Congress of 20 April, 1818, upon which he was indicted.

6. That the defendant cannot be convicted on the second, fifth and sixth counts in the indictment because no legal offense is charged in either of these counts, the said counts not charging that the General Winder was built, fitted, equipped, loaded, or otherwise prepared within the jurisdiction of the United States, and that the said fifth and sixth counts are also defective in charging the defendant with intent that the vessel should be employed in the slave trade instead of charging him with intent to employ her.

7. That the defendant cannot be convicted on the third, fourth, fifth, and sixth counts unless there be a previous conviction of the principal in the offense in the said counts mentioned.

The opinions of the judges being divided upon these points, and also upon the question of allowing objections to the form and sufficiency of the indictment to be discussed at the trial before the jury, the questions were certified to this Court for final determination.

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