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

ON CERTIFICATE OF DIVISION OF OPINION AMONG THE JUDGES

OF THE CIRCUIT COURT FOR THE DISTRICT OF MARYLAND

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

MR. JUSTICE THOMPSON delivered the opinion of the Court.

This case comes up from the Circuit Court for the District of Maryland on a certificate of division of opinion touching the admission of testimony offered on the part of the United States in support of the prosecution.

The indictment against the prisoner contains several counts.

The first charges him with having, on 1 July, 1828, at the District of Maryland, within the territory and jurisdiction of the United States, issued a commission for a certain vessel called the Jane, otherwise 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 was at peace, against the form of the act of Congress in such case made and provided.

The second count charges him with having delivered a commission for the Jane with the like intent. The third charges him with having delivered a commission to one John Chase for the Jane for the like purpose and with the like intent.

Page 31 U. S. 364

The fourth charges him with having issued a commission to John Chase for the Jane for the like purpose and with the like intent. There are some other counts, laying the offense in different ways, which are unimportant for the present question.

In support of the prosecution, it was proved that the privateer referred to in the indictment was built and fitted out in the port of Baltimore for a certain John Chase. That the Jane sailed from the port of Baltimore for the West Indies, and at St. Eustatia she hoisted Buenos Ayrean colors, changed her name to that of the Congresso, and performed a cruise under the command of John Chase, exercising therein acts of hostility against the subjects and government of Brazil.

It was also given in evidence on the part of the United States that the said Chase stood indicted in that court for a misdemeanor for accepting, in the District of Maryland, a commission to cruise, and with cruising with the said privateer against the subjects and government of Brazil. That a bench warrant had been repeatedly issued out against the 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 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 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.

Upon the admissibility of the said evidence, the judges were opposed in opinion, and the question comes here for decision.

The objections to the admissibility of the evidence have been submitted to the court under the following heads.

1. Because the evidence so offered was of a secondary character.

2. Because the facts proved did not present a proper case for the admission of secondary evidence.

3. Because the evidence offered was not the next best evidence of which the nature of the case admitted.

Page 31 U. S. 365

It is undoubtedly true that the evidence offered was of a secondary character. The primary evidence would have been the commission itself. The word "commission," ex vi termini, imports a written authority, and the offense under this part of the act of Congress (6 U.S. 321, sec. 3) consists in issuing or delivering a commission for any ship or vessel with intent that she may be employed, &c., and there is no doubt it must be shown to have been a commission emanating from the government of the United Provinces of Rio de la Plata, as alleged in the indictment, and it must at least purport to be a valid, subsisting commission and intended as the authority under which the vessel was to cruise. But all these inquiries relate to the sufficiency of the evidence to establish these facts, not to its competency. The former belongs to the jury to decide, the latter to the court. Whether it could have been shown that the commission about which the inquiry was made was a document coming within the indictment, and necessary to be proved in order to establish the offense, does not come within the question sent up to this Court. The argument however, against the admissibility of the evidence goes the length of contending that nothing short of the commission itself will furnish the necessary evidence.

We think the objection in this respect not well founded, but that the case falls within the rule that when the nonproduction of the written instrument is satisfactorily accounted for, secondary evidence of its existence and contents may be shown. This is a general rule of evidence applicable to criminal as well as civil suits. And there can be no reason why it should not apply to cases like the present. And indeed a contrary rule not only might but probably would render the law entirely nugatory, for the offender would only have to destroy the commission and his escape from punishment would be certain.

Under this head of the objection it has been argued that the commission should have been set out or recited in the indictment, or the reason for the omission should appear on the face of the indictment. If there is any ground whatever for this objection (which we are far from intimating), the point cannot be made here under the question sent up from the circuit court. If well founded, it must be presented in some

Page 31 U. S. 366

other form. We are now confined to the question on which the opinions of the judges were opposed, and the sufficiency of the indictment forms no part of that question. The objection went to the admissibility of any evidence relative to the character or contents of the commission, because it was not produced, or its nonproduction sufficiently accounted for, and this brings use to the second head of inquiry -- viz. whether the facts proved presented a proper case for the admission of secondary evidence.

The facts which had been proved were that the privateer was built and fitted out in the port of Baltimore for John Chase. The crew was shipped at Baltimore by Franklin Chase, the brother of John Chase. That she sailed from the port of Baltimore for the West Indies under the name of the Jane, and at St. Eustatia she hoisted Buenos Ayrean colors and 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. That Chase stood indicted in the same court for a misdemeanor for accepting a commission, and cruising with the said privateer against the government and subjects of Brazil, and that a bench warrant had been repeatedly issued against him, but he could not be found.

This evidence established very clearly that this vessel was fitted out and cruising in violation of the law of the United States and that she was under the command of John Chase. It is reasonable, therefore, to presume that the commission on board the privateer was the authority under which Chase acted. He was the person most interested in retaining the possession of the commission, and the law will presume it to be in his custody when there is no proof to the contrary, and to him, therefore, application should be made for it. The law points to him as the depository of this document, and search for it in any other place would not amount to that due diligence to procure the primary evidence which would be necessary in order to let in the secondary evidence.

But if all reasonable diligence has been used to find it at the place where the law presumes it to be, no more can be required for the purpose of letting in the secondary evidence.

Has that been done? The person whom the law charges with

Page 31 U. S. 367

the custody of the paper stands indicted for an offense against the same law; process has been repeatedly issued against him to have him apprehended, without effect. This was all the effort to find him that could reasonably be required. A subpoena to compel his attendance as a witness would have availed nothing, and the law does not require the performance of an act perfectly nugatory. But suppose Chase had been within the reach of a subpoena, and had actually attended the court, he could not have been compelled to produce the commission, and thereby furnish evidence against himself. All the means, therefore, that could have been used to produce the commission itself were exhausted.

But it has, in the third place, been argued that admitting enough had been shown to lay the foundation for the admission of secondary evidence, that which was offered was not the best evidence of which the nature of the case admitted.

The rule of 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 some secret or sinister motive in not producing it. Rules of evidence are adopted for practical purposes in the administration of justice, and must be so applied as to promote the ends for which they are designed. It has been said that according to this rule, recourse should have been had to the records of the Buenos Ayrean government for a copy of the commission. If it should be admitted that a record is there to be found of this instrument and that on application a copy of it might have been procured, it would be carrying the rule to pretty extravagant lengths to require the application to be made. But there is nothing in this case showing that any such record exists. Nor can this Court presume as matter of law that a record of such commission, as filled up, would be found there. And indeed, from the nature of the transaction, the contrary is the reasonable presumption. It is not unlikely that the Buenos Ayrean government may have some record of the names of persons to whom commissions had been issued. But

Page 31 U. S. 368

the course of the transaction almost necessarily implies that the commissions issued here were sent out in blank as to the names of persons and vessels, and the mere formal parts of the commission would have furnished no evidence whatever. So that there is no reasonable ground to conclude that a record of this commission existed from which a copy might have been made. But if that should be admitted, it does not bring the case within the rule. The evidence must be attainable or within the power of the party who is called upon to produce it, and from the nature of this transaction there is no reason to conclude that such was the case here; but the contrary is fairly to be inferred. It must have been a voluntary act on the part of the foreign government to have permitted a copy to be taken, and it is unreasonable to suppose that such permission would have been given. It would have been voluntarily furnishing evidence against its own agents, employed to violate our laws, and no comity of nations could have required this.

We are accordingly of opinion that the evidence offered was admissible, and direct it to be so certified to the circuit court.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Maryland, and on the points and questions on which the judges of the said circuit court were opposed in opinion and which were certified to this Court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel, on consideration whereof it is the opinion of this Court that the evidence offered was admissible. Whereupon it is ordered and adjudged by this Court that it be certified to the said circuit court that the evidence offered in this cause was admissible.

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