United States v. Reyburn
31 U.S. 352 (1832)

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U.S. Supreme Court

United States v. Reyburn, 31 U.S. 6 Pet. 352 352 (1832)

United States v. Reyburn

31 U.S. (6 Pet.) 352

Syllabus

Indictment against the defendant charging him with having "issued" a commission in the United States for a vessel to the intent that the vessel might be employed in the service of a foreign people to cruise and commit hostilities against the Emperor of Brazil, with whom the united states was at peace, against the act of Congress, &c. The second count charged the defendant with "having" delivered a commission to John Chase for the like purpose and intent. The fourth count charged him with having "issued a commission" to Chase for the like purpose. Evidence was given to prove that the vessel was built and fitted out for Chase in Baltimore, that she changed her name, hoisted the Buenos Ayrean flag at St. Eustacia, and made a cruise under the command of Chase, capturing vessels belonging to the subjects and government of Brazil. Also that Chase had been indicted for "accepting" in the District of Maryland a commission to cruise, and cruising with the said privateer against the subjects and government of Brazil, and that a bench warrant had been repeatedly issued for him, but that he could not be found. The counsel for the United States asked a competent witness whether he saw a commission on board the privateer. Held that such evidence was admissible.

The evidence falls within the rule that where the nonproduction of the written instrument is satisfactorily accounted for, satisfactory evidence of its existence and contents may be shown. This is a general rule of evidence applicable to criminal as well as to civil suits, and a contrary rule not only might but probably render the law entirely nugatory, for the offender would only have to destroy the commission, and his escape from punishment would be certain.

The rule as to the admission of secondary evidence does not require the strongest possible evidence of the matter in dispute, but only that no evidence shall be given which, from the nature of the transaction, supposes there is better evidence of the fact attainable by the party. It is said in the books that the ground of the rule is a suspicion of fraud, and if there is better evidence of the fact which is withheld, a presumption arises that the party has dome secret or sinister motive in not producing it. Rules of evidence are adopted for practical purpose in the administration of justice, and must be so applied as to promote the ends for which they are designed.

Thomas S. Reyburn, the defendant, was indicted under the provisions of the third section of the act of Congress, passed April 20, 1818, entitled "An act in addition to the act for the punishment of certain crimes against the United States and to repeal the acts therein mentioned."

The indictment contained four counts; the questions on which the judges of the circuit court were divided were presented under the first and second.

Page 31 U. S. 353

The first count charged that Thomas S. Reyburn, the defendant, on 1 July 1828, at the District of Maryland, within the territory and jurisdiction of the United States, with force and arms did issue a commission for a certain vessel called the Jane, otherwise called the Congresso, to the intent that such vessel might be employed in the service of a foreign people -- that is to say, in the service of the United Provinces of Rio de la Plata, to cruise and commit hostilities against the subjects and property of a foreign prince -- that is to say, His Imperial Majesty the Constitutional Emperor and Perpetual Defender of Brazil, with whom the United States then was and still is at peace, against the form of the act of Congress in such case made and provided, and against the peace, government, and dignity of the United States.

The second count was as follows:

"And the jurors aforesaid, upon their oath aforesaid, do further present that the said Thomas G. Reyburn, on the day and year aforesaid, at the district aforesaid, within the territory and jurisdiction of the United States and within the jurisdiction of this Court, did with force and arms deliver a commission for a certain other vessel, called the Jane, otherwise called the Congresso, to the intent that such vessel might be employed in the service of a foreign people -- that is to say, the service of the United Provinces of Rio de la Plata -- to cruise and commit hostilities against the subjects and property of a foreign prince -- that is to say against the subjects and property of His Imperial Majesty the Constitutional Emperor and Perpetual Defender of Brazil, with whom the United States then was and still is at peace, against the form of the act of Congress in such case made and provided and against the peace, government, and dignity of the United States."

On the trial of the cause, the United States offered in evidence that the privateer referred to in the indictment was built and fitted out in the port of Baltimore in the District of Maryland for a certain John Chase, also therein mentioned; that the Jane was commanded from the port of Baltimore to St. Barts, thence of St. Eustatia in the West Indies, and the crew was shipped in said port of Baltimore at the request of Franklin Chase, a brother of said John Chase, the said Franklin Chase being the only person known to the shipper of the crew;

Page 31 U. S. 354

that she sailed from the said port to the West Indies under the name of the Jane, that at St. Eustatia the said vessel hoisted Buenos Ayrean colors, changed her name to that of the Congresso, and performed a cruise under the command of the said John Chase, exercising therein acts of hostility against the subjects and government of Brazil.

The United States further gave in evidence from the records of this Court that the aforesaid John Chase stood indicted for a misdemeanor for accepting in the District of Maryland a commission to cruise and for cruising with the said privateer against the government and subjects of the empire of Brazil; that a bench warrant had been repeatedly issued out against said Chase, but that he could not be found, and the process was always returned non est inventus.

Whereupon the counsel for the United States proceeded to inquire of a legal and competent witness whether he saw a commission on board the said privateer. But the traverser, by his counsel, objected to the admissibility of any evidence relative to the character or the contents of the said commission because the commission was not produced by the United States or obtained from any witness, nor a copy procured from the public archives of Buenos Ayres, nor its destruction proved, nor any efforts to procure it shown by the United States.

And the judges of the aforesaid court, being opposed in opinion upon the admissibility of the said evidence, do at the request of the attorney of the United States for the District of Maryland state and certify their said opposition in opinion to the Supreme Court of the United States, according to the act of Congress in such case made and provided.

Page 31 U. S. 363

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