Los Angeles herald., 1891-11-04
1875 s. Spring ST., Wagner's Kimberley. 1oa11yr

fitting out, or furnishing the
Itata with the intent that she
should be employed to cruise or commit
hostilities against the then established
government of Chile, it necessarily fol-
lows that the prosecution has failed to
prove the case alleged against the de-
fendants, and the motion made on their
behalf should be granted. One of the
counsel for the United States conceded,
on the argument, that the evidence Is
insufficient to show that the defendants
fitted out and armed the Itata, but he
contended strenuously that it is sufficient
to show that they were knowingly con-
cerned in furnishing her. OF course,
II he is right in the concession, it results
that the first count is not established by
proof, and, since the evidence does not
tend to show that the defendants, or
either of them, attempted to do, or pro-
cured to be done, anything they did not
in fact do, the second and third counts
would also fall. If, as is conceded,
and as seems to me to be clear, the put
ting on board the Itata of the arms and
ammunition under the circumstances
and for the purposes stated did not con-
stitute the fitting out and arming OF that
vessel, it is difficult to understand how
the same acts, committed under the
same circumstances and for the same
purposes, constituted the furnishing"
OF her. There is snothing in the evidence
tending to show that any of the arms or
ammunition were intended for use by
the Itata. On the contrary, the whole
case shows that the defendants caused
them to be put on board of her with the
intention that she should transport
them to Chile, for the use OF
the insurrectionary party there. This
does not constitute the fitting out. ann
ing or furnishing of the Itata, with in
tent that she should be employed to
cruise or commit hostilities in the SER
vice of the insurrectionary party against
the then government OF Chile. In
principle, the case is, think, much like
that OF the steamship Florida, decided
by Judge Blatchford in 1871, and re-
ported in Benedict, 452. That was
suit against the Florida for an alleged
forfeiture incurred under the third Sec
tion of the act of April 20, 1918, now, in
substance, section 52S3 of the revised
statutes. The court said: Admitting
that persons acting as agents of the in
surrectionary party in Cuba were the
real owners of the vessel and her cargo
of arms and munitions of war, and that
the transaction of the borrowing by
Dorr from Castillo of the money where
with the vessel and her cargo were pur-
chased was sham, and that the vessel
was to proceed with her cargo to Vera
Cruz, and there vessel and cargo were
to be transferred by Dorr, their NOM
inal owner, to persons acting for the in
surrectionary party in Cuba, and that
thence the vessel was to take the cargo
to some point off the coast of Cuba and
land it on the shore by the use of RATS
made out of the lumber on board, towed
by the steam launch on board through
shallow water to the shore, and that
Dorr and such real owners of the vessel
and cargo had an intent to do all this
in fitting out the vessel and putting
her cargo on board, still viola
ton of the third section of the act of
1878 is not thereby made out. A vessel
fitted out with intent to do this is not
fitted out with intent to cruise or COM
section. If so, then every vessel fitted
munitions of war, is necessarily fitted
out, within the sense of that section, to
commit hostilities against the country
ade. There is no satisfactory evidence
that the vessel was furnished, or fitted |
out, or armed, or attempted to be fur
'nished, or fitted out, or armed, with in
tent that she should be employed to |
cruise or commit hostilities, in the sense |
of the third section of the act, in the |
services of the insurrectionary party in |
Cuba against the government of Spain.
There is no evidence that she was in
tended to do anything more than trans |
port her cargo to the coast of Cuba and
cause it to be landed there ON RATS, by |
the aid of the launch on board. To do
this was no violation of the third sec.
tion of the act, which is the one on
which the libel is founded
"In letter from Attorney General
Speed to Mr.. Seward, then secretary OF
state, he said 4 know of no law or reg
ulation which forbids any person or
government, whether the political des-
ignation be real or assumed, from pur-
chasing arms from the citizens OF the
United States and shipping them at the
risk of the purchaser Top. 'y-Gen'l,
vol. III, 1922
''The fact that secrecy and deception
were resorted to in the present case, as
was also done in the case of the Florida,
can not bring it within the purview Of
the statute, if not otherwise within it;
nor even the circumstances that the
Itata, in leaving the port OF San Diego
in the manner disclosed by the evidence,
violated other provisions of law. The
case alleged must, Of course, be proved;
otherwise the defendants are entitled to
verdict of not guilty.
Entertaining the views above ex-
pressed, it becomes unnecessary to de-
eide what effect, if any, should other
wise be given in this case to the recog-
milton by the United States on the 4th
of September of the government estab-
lished by the Congressional party, or to
determine other questions raised, all OF
which have been elaborately and very
ably argued by counsel.
"The evidence introduced on behalf OF
the prosecution being, in my opinion,
insufficient to warrant conviction un-
der either count of the indictment, the
motion made on behalf of the defend-
ants is granted, and the jury are in
structed to find verdict Of not guilty"
VIII Ra Csivon Auav.