The United States v Flecke.

JUNE, 1868.

THE UNITED STATES v. CHRISTOPHER FLECKE, JOHN FLECKE AND HENRY HILDEBRAND.

INTERNAL REVENUE.-DISTILLING.-AUTREFOIS ACQUIT.

Where the defendants had been indicted under the twenty-third section of the Internal Revenue Act of July 13th, 1866, for knowingly carrying on the business of a distiller, on June 22d, 1867, without having paid the special tax, on which indictment they were tried and acquitted, the ground of the acquittal being that they were not the principals who were bound to pay the tax, and were afterward indicted under the twenty-fifth section of the same Act, for knowingly using a still for the purpose of distilling, in a certain dwellinghouse, on June 22d, 1867, the evidence on the trial of the first indictment showing that the place of the offence charged was this same dwelling-house : Held, That a plea of autrefois acquit, founded on the acquittal under the first indictment, could not be sustained.

That the tests as to whether such a plea can be sustained are, whether the defendants could, under the earlier indictment, have been convicted of the offence embraced in the later one, and whether the evidence necessary to support the later indictment was sufficient to produce a legal conviction on the earlier

one.

BLATCHFORD, J. The defendants are indicted by an indictment found April 29th, 1868, under section twentyfive of the Internal Revenue Act of July 13th, 1866, for knowingly using a still for the purpose of distilling, in a certain dwelling-house situated at No. 189 Essex street, in the city of New York, on the 22d of June, 1867. They plead specially a plea of autrefois acquit, in this, that they have heretofore been indicted in the Circuit Court for this District, by an indictment found December 23d, 1867, under section twenty-three of the same Act, for knowingly carrying on in this district the business of a distiller, on the 22d of June, 1867, without having paid the special tax in that behalf required by the statutes of the United States, and that they have been

The United States v. Flecke.

tried on the indictment first found and acquitted. The earlier indictment specified no place where the business was carried on except this district generally, but it appears that the evidence given on the trial of that indictment showed that the place was the same dwellinghouse specified in the later indictment, and that the ground of acquittal was, that the defendants were not principals in the business, and were not properly to be regarded as carrying on the business, and were not the persons bound to pay the special tax, and therefore were not within the twenty-third section. The twenty-third section provides, that if any person shall carry on the business of a distiller, without having paid the special tax as required by law, he shall for every such offence be liable to a fine of not less than double the tax imposed upon the spirits distilled by such person, or found upon the premises where the business is carried on in violation of the section, and to imprisonment for a term not exceeding two years. The twenty-fifth section provides, that no person shall use any still for the purpose of distilling in any dwelling-house, and that every person who shall use such still for the purpose of distilling in any dwelling-house, shall forfeit such still and all the spirits distilled, and pay a fine of one thousand dollars, or be imprisoned for not more than one year, in the discretion of the court.

I do not think there is any thing in the earlier indictment, or in the fact that the defendants were acquitted on it, to prevent their being indicted by the later indictment and being tried under it. The defendants could not, under the earlier indictment, have been convicted of the offence embraced in the later one, nor would the evidence necessary to support the later indictment have been sufficient to produce a legal conviction upon the earlier one. These are the proper tests as to whether the plea of a former conviction or a former acquittal is good or bad, (Wharton's Criminal Law, pp. 196

The Barkantine Kathleen.

to 199, 2d edition.) Proof on the trial of the earlier indictment, that the defendants used a still for the purpose of distilling in a dwelling-house in Essex street, would not have been sufficient to convict them, under that indictment, of carrying on the business of a distiller, without having paid the special tax required by law; nor would it have been available to convict them, under that indictment, of having used a still for the purpose of distilling in a dwelling-house, because such earlier indictment contained no such charge. The offence created by the twenty-fifth section, is not a minor offence included in the offence created by the twenty-third section, as a greater offence, so as to authorize, on an indictment for the offence created by the twenty-third section, a conviction for that created by the twenty-fifth section.

The plea is, therefore, overruled.

B. K. Phelps (Assistant District Attorney), for the United States.

J. Lux, for the defendants.

JUNE, 1868.

THE BARKANTINE KATHLEEN.

BOTTOMRY.

Where a British vessel, bound to New York, put into Ship Harbor, Nova Scotia, in distress, and her master, who was half owner, had her repaired, and, having no means to pay for the repairs, borrowed money at Halifax, on a bottomry of the vessel, having telegraphed to the other part owner of the vessel in Canada, but not having been able to procure the funds he needed except by the bottomry:

Held, That the master had the right to create a bottomry on his own interest in the vessel, without the existence of any necessity for doing so.

That, as to the interest of his co-owner, it was no objection to the bottomry, that the loan was effected after the repairs were made and the supplies furnished.

The Barkantine Kathleen.

That, the necessity for the repairs being shown, it was for the claimant to show that the money could have been obtained otherwise than by bottomry, if he would defend against the bond.

This was a libel filed by John Taylor, of Halifax, in Nova Scotia, to recover the amount of a bottomry bond executed at Halifax, on the 3d of June, 1865, by Henry Barthe, master and half owner of the barkantine Kathleen, to the libellant, upon the vessel, to secure the payment of $3,240 lawful money of Nova Scotia, within ten days after the safe arrival of the vessel at New York, being for $2,700 lawful money of Nova Scotia, with 20 per cent. premium. The bond recited that Barthe, part owner and master of the vessel, then in prosecution of a voyage from Halifax to Lingan or Cow Bay, in the Island of Cape Breton, and thence to New York, was necessitated to take up, upon the adventure of the vessel, the $2,700, for setting the vessel to sea, in consequence of her having run on shore at Little Dover, and heavy expenses having been incurred in getting her off and repairing her, and making her fit to continue the voyage, and discharging the lien thereon for said expenses and repairs, and that the libellant had, at the request of Barthe, lent and supplied to him said sum, at the rate of $120 for every $100 advanced during said voyage.

The libel averred that the vessel, while on said voyage, in May or June, 1865, ran on shore at Little Dover, and was greatly injured; that she was taken off at considerable expense, and put into Ship Harbor, in the Strait of Canso; that heavy expenses were incurred in getting her off and repairing her, and making her fit to continue the voyage, and in discharging the lien thereon for said expenses and repairs; that Barthe, the master and part owner of the vessel, being a stranger at Halifax, and being in want of money to pay for the repairs of the vessel and fit her for sea, and furnish her with provisions and other supplies necessary for the prosecution of his intended voyage, and having no other means of procu

The Barkantine Kathleen.

ring the same, borrowed from the libellant, with the commission thereon, $3,240, lawful money of Nova Scotia, upon the bottomry of the vessel, and that said sum was advanced and paid accordingly; that the said sum of $3,240 was advanced and paid by the libellant to the master for said purpose, and was necessary therefor, and that the vessel could not otherwise have sailed from Ship Harbor; and that the vessel arrived at New York on the 19th of July, 1865. The libel was sworn to and filed on the 7th of August, 1865.

The other half owner of the vessel was a person named Lucia, of Sorel, in Canada. A claim by one Charlton, as sole owner, was sworn to and put in by him, on the 14th of August, 1865. He put in an answer to the libel, averring his sole ownership of the vessel on the 27th of September, 1865, when the answer was sworn to by him. His claim and answer averred that he was in possession of the vessel when she was seized. His answer consisted of a general denial of the material allegations of the libel.

The ground taken in defence was, that no necessity was shown for the advance of the money, and that the master did not send to Canada to see if he could procure the money he needed, and that, as the vessel was a British vessel, in a British port, the master belonging in Montreal, the bottomry was not authorized.

For libellant, Martin & Smith.

For claimant, Beebe, Dean & Donohue.

BLATCHFORD, J. The master had an undoubted right to create a bottomry on his own interest in the vessel, without the existence of any necessity for doing so (1 Parsons' Mar. Law, 410, 411, and cases there cited). So far as the interest of his co-owner was concerned, the evidence shows that the repairs, fitments, and supplies were necessary for the vessel; that the money was lent on the