#### The State *v.*Albert Cordes.

Indictment under the act of 1836, (Acts, p. 60,) for harboring one F. C. Lenderman, a deserted seaman. By the shipping articles of the Bremen barque Elizabeth, Lenderman bound himself “'to go in her as a seaman, from *Bremen*to *Baltimore,*and from *Baltimore*back again to *Bremen,*or any other place where our destiny may be, or the further voyages may goand that “ he would not leave the ship out of the country (from home), nor demand his discharge, nor his wages that have not been received from a foreign tribunal.” Held, that by the articles, the vessel, after reaching her port of destination, might proceed to other ports before her return to Bremen; and that her coming from Baltimore to Charleston did not constitute such an unreasonable lengthening, either of the principal voyage contemplated, or its duration, as to render the contract void, or. entitle the seamen to be discharged from the vessel.— The seaman, Lenderman, being still bound to the vessel, and the defendant having been found guilty of harboring him while he deserted from the ship, the court refused to grant a new trial; two juries having found the defendant guilty on the evidence.

This case came up on an- appeal from the City Court. It was tried before his honor, the recorder, (Jacob Axson, Esq.) at April term, 1838. The report of the recorder is as follows: “ This was an indictment against the defendant, under the act of 1836, for harboring an articled seaman, F. C. Lenderman. This was a second trial of this case, and all the evidence reported to the court on the first trial was by consent, received in this. That testimony was- in substance as follows: “ Lewis Trappman, *153sworn — testified that the articles produced to him are the shipping articles of the Bremen barque Elizabeth: they were deposited as such with him in his official capacity as Consul of Bremen: they are certified as having been executed in Bremen: don’t know the signatures: knows nothing of the paper, but that it came out with that ship, and was deposited in his office: knows the captain personally: don’t know the sailors: the names of Lenderman and Stenkin are there. [Mr. Thompson objected to the receiving the articles in evidence, not having been sufficiently proved. I overruled the objection, and permitted the articles to go to the jury.] C. P. L. Westendorff, sworn — gave the following translation of the parts material to the case : 1st article — “ to *go from Bremen to Baltimore, and from*Baltimore back *again to*this place, (Bremen) or any other place where our destiny may be, or the further voyages may go.” Article 5th, part 1st, — the seamen bind themselves that “ they will not leave the ship out of the country, (from home) nor demand our discharge nor our wages that have not been received from a foreign tribunal.”— John Meyer, sworn — testified that on 29th March last, he was at the theatre: that Edward Wood, the constable, and the captain of the Elizabeth called on him, to assist in looking for his seamen: witness asked if they had a warrant: they said yes: they together went to Cordes’ (defendant’s) house in King-street: witness got upon the gate: staid there some time: heard different voices in the house: called to the captain, and told him he believed his seamen were there: came down and knocked at the door: some time before the door was open : the door was opened by Mrs. Cordes : believes it to be her: told her what they came for: she said they had no business there : he said he had a warrant for two sailors, naming them, to wit, Lenderman and Stenkin— the captain named them to Mrs. Cordes. Cordes, the defendant, came down stairs and asked what was the matter: told him they came to search for the seamen, naming them: he (Cordes) replied, if he had not heard two days previous that the warrant was out for them, they would have found them there, but he had taken damned good care that they should not get them: concluded to search, but they could not find them: the captain repeated the *154names of the seamen several times in the presence of Cordes.— On his cross-examination, was asked for the warrant under which he acted, which was produced. He said an action was brought against him for trespass for entering Cordes’ house : he (witness) advised this prosecution against Cordes: did so that very night, before he heard of any action to be brought against him. He says Cordes keeps boarders, can’t say they are sailors: have that appearance: Cordes is a baker by trade. Upon being asked if he knew any thing against defendant’s character, he said that Mr. Smith, late attorney general, did not -like him; he prosecuted him for beating his goat. Witness did not ask Cordes if he had concealed these persons; the captain did, to which Cordes made the reply above stated, that he had taken care they should' not find them. Does not know that Lenderman or Stenkin belonged to the Elizabeth, or deserted from her ; knows nothing about them. He said Cordes was much irritated; abused them very much, until he threatened to put him in the guard house if he did not desist. Witness himself was a little irritated at last. Defendant would not let them read the warrant to him. Cordes spoke alternately in English and Dutch; he was not in a very violent passion when he said he had taken damned good care' they should not find them. Cordes admitted that he had heard- the seamen had run away. In reply, he said Cordes lives in King-street, in the corporate limits.- Cordes spoke in Dutch when he first came down stairs. The captain mentioned the names of all the men three or four times: Cordes admitted that he had heard these' men had run away. — Defence. Albert C. Curtis, sworn — testified he lives in Cordes’ house: hires a shop in front, and boards with him: knows Lenderman: has seen him at Cordes’ house. Lenderman was an acquaintance of Cordes’ in the old country: were neighbors there: came to Cordes to bring accounts from his family: came always openly, never secretly: never knew of any seamen secreted in Cordes’ house by day or by night. Recollects the night Meyer and the captain came to Cordes’: was present the greater part of the time they were there : did not hear Cordes admit that any seamen of the Elizabeth were harbored in his house. The constable asked Mr. Cordes if any sailors were in his house : he *155said not: has seen several seamen there, but does not know if they belonged to the Elizabeth: they came generally about 7 o’clock, and went away about 10: they came to see him: they were countrymen: he heard that the seamen of the Elizabeth had run away: never saw Lenderman in the house after that. — On his cross-examination, he said he is a cousin of Cordes, resides there free of expense, but sometimes assists him in his business. Witness knew that Lenderman belonged to the Elizabeth: was not present when Cordes came down stairs : the conversation with Mrs. Cordes was in German: saw Lenderman at Cordes’ four or five times: did. not see him there the day the constable came there : it was four or five days before that: never saw Lender-man at Cordes’ after he heard of his being a runaway, until the vessel was gone : saw him there frequently afterwards : never saw Lenderman there in the mornings, except on Sundays, and then he came at daylight: when he saw him there early in the morning, it was in the room of Cordes, down stairs, his wife being there with them: never saw Lenderman there after 10 o’clock at night: never heard Cordes say that he knew the seamen had deserted. — J. C. Blum, sworn — testified he knows defendant: has been dealing with him for five years : he is a baker: he is a very correct, honest man: a man of irreproachable character.” In addition, F. C. Lenderman, the seaman said to have been harbored, was adduced on the part of the state. He proved his signature to the articles: on his cross-examination, said he had been at Cordes’ house: was never there secretly: never was concealed by Cordes: never told Cordes he had run away from the vessel: never was concealed in any out-house or elsewhere. In reply, said can’t say how often he was at Cordes’: many times when the vessel was at the wharf, before he ran away: knows nothing about the constable going there : heard when he came from the country, that there was a warrant against' him: the very day he ran away, he went into the country: when the vessel was gone, came to town, and boarded at Cordes’: never went to Cordes’ after he quit the vessel and before he went into the country: went into the country immediately: heard in a shop on the neck that the vessel was gone. In reply to a question put by Mr. Thomp*156son, he said Cordes never encouraged him to quit the vessel, or concealed him in any way. Here the testimony closed. I charged the jury, that in order to convict the defendant, it must appear that Lenderman was an articled seaman; ha'd deserted, and had been harbored by the defendant. I charged that the articles were the contract between the captain and the mariner: if violated by the mariner he was liable to be punished: if by the captain the mariner was absolved from all obligations under them.. That coming to Charleston was not authorised by the terms of the articles, and could not be justified under the general terms, unless it was proved that it was rendered necessary by stress of weather, or other necessity, or that it was usual or indispensable to the stipulated voyage. My opinion was, and I so expressed it to the jury, that coming to Charleston was a violation of the articles, which entitled Lenderman to his discharge, and that the defendant was entitled to an acquittal. The jury found the defendant guilty, and he now moves this Court for a new trial on the following grounds. 1. Because it is submitted, his honor, the Recorder, correctly charged the jury, that Lenderman, the sailor alleged to have been harbored, was not legally bound by his articles to the barque Elizabeth, and consequently the legal offence charged in the indictment could not have been completed, and the verdict'in *this*respect was against law. 2. Because independent of the fact that no contract was proved to exist, binding the seaman to the barque Elizabeth in Charleston, as an articled seaman at the time of the alleged harboring, there was no evidence to prove the harboring; but on the contrary, the witness for the prosecution (the man alleged to have been harbored) expressly swore he was neither harbored nor concealed by the defendant, and the defendant submits that the verdict in this respect was palpably against evidence. 3. Because it is submitted the verdict was against the settled law and the plain evidence in the case.

Curia, per Evans, J.

I think it very clear the articles contemplated, that the vessel after reaching her port of destination might proceed to other ports before her return to Bremen, and there is nothing in the law regulating those contracts, which prohibits such *157agreements. Sailors are in general ignorant, and easily beguiled and defrauded; and hence, in order to prevent the impositions too often practised upon their ignorance and defenceless condition, the laws, both of England and the United States; have gone very far to relieve them from these contracts, where any unreasonable construction is attempted to be put on general terms used in the articles. If the captain of the Elizabeth, after reaching Baltimore, instead of returning to Bremen, had taken in a new freight for the South Sea Islands, for China, or Archangel, or any other distant port obviously not within the contemplation of the parties when the articles were signed, it would have been a breach of the contract by the captain, which would have discharged the sailors, and in such case Lenderman would not have been a deserter. But I apprehend the coming from Baltimore to Charleston, is not such an unreasonable lengthening either of the voyage itself or its duration, as will authorise this court to pronounce the contract void for this reason. As to the second ground, whether the testimony was sufficient to convict the defendant of harboring, I have no remark to make, except that two juries have successively found the defendant guilty on the evidence, and we are not disposed to interfere by granting a new trial.

*Thompson*for the motion.

*Attorney General,*contra.

The motion is therefore dismissed.

O’Neall and Betlek, Justices, concurred. Eaexe, J. absent at the hearing, but concurred in the judgment.