Year: 1869

UNITED STATES CIRCUIT couar.
The Case of the Ship James Foster, Jr.-
Second Day of the Trial Of Her Onicers-
The Prosecution Rests-Openins for the De-
fence-Adl0urnment Oh Account OF the Abb
sence of Witnesses.


Before Judge Benedict.


The trial OF James Glynn on one OF the nine In
found against him for assauting the pas
sengers and crew OF the ship James Foster, Jr, on
board Of which he was the carpenter on her last
passage from Liverpool was resumed yesterday.
The government put In all the evidence 1t was pro-
posed TO oner for the prosecution and rested. The
case was Immediately opened for the defence, but
after the swearing OF one witness the court ad-
journed.


Am Deputy Marshal OF this district; arrested
Glynn, in the Richmond county jan, March "a.


With this testimony the prosecution rested.


THE DEFENCE.


Mr. Thomas McGrath opened the case on behalf OF
great suffering owing to the large number Of pas
sengers the season OF the year and the length OF the
Officers OF the ship under such circumstances would
be douby obnoxious. II on fair trial 1t could be
shown that the prisoner was guilty OF the charges
case, however, was far different from what
one would infer from the statements OF
an INSCRIPTIONS press and the opening address
OF the District Attorney. With the question OF the
scarcity or the food, to which cause the case had
owed much of It's notorety, or with the treatment
the case on trial the Question OF cruel treatment
OF passengers, II any such there was, did not enter
1t the relation of the prisoner to the crew that
was to be inquired into and passed upon by the
jury. This question would naturally lead 10 the con-
and crew. The laws affecting the rela
uoDs between man and man on land and
a. sea were neetss necessarily I'D different from each each
allowable at sea than on land, but absolutely de-
manded by the necessities OF the situation. on
board this vessel, the counsel urged there was no
greater severity than the circumstances actually
required If there was, the responsible parties were
not the man trial, but his superior officers. The
fact that Stokes died on the passage should not lead
to the conclusion that he was, on that account the
victim OF the wanton cruelty OF the prisoner. The
captain and mate soon after landing died OF ship
fever, and II was more than probable that Stokes
died OF the same disease. But even II Glynn was
more severe than was right in his dealings With
those subordinate to him, 1t should be remembered
he, too, was a subordinate onlcer, and in what he
might have been committed. In dong what he did
the probability was that he but 0beyed the bidding or
his superior Ocers. II this were so to have refused
obedience would have been an act OF insubordina
ton-a very grave offence on board OF ship. IL he
transcribed his instructions he would have been
called TO account by his superiOrs But that ne
ever was called 10 an account there was no evi-
dence whatever In the absence OF such testimony
IL clear that the prisoner was not the responsi
bile party in any acts Of violence he might have CON-
mtled. II he inflicted punishment he response
BILE to the MASTER who was to judge of the necessity
for such punishment. The Jaw made his discretion
absolute and despotic. subordinate Offlcer had no
right TO question that discretion or Judgment. IL
was simply his duty to execute his commands, i'm
pressed with the conviction that his actions were not
criminal. The relationship between the parties gave


different aspect TO the assaults, and negati7ed the
assumption that malice was an ingredient OF the
offence. without malice and revenge there was no
CRIME, and the indictment could not be sustained.
The law justified the use OF O deadly or dangerous
weapon by the master OF q vessel. and he was not
liable to prosecution THEREFOR, although the neces.
sity was apparent one and he afterwards learned
that less severe measures might have answered. The
manner IN which the weapons were used could alone
determine whether they were dangerous or not, and
from the evidence IT did not appear that they were
used so as to make them so The Court charging
the intent to kill was not sustained by the evidence
The intent could a'one proceed from the motive 1t
could only be inferred from the act and the manner
OF the assault and inasmuch as the defendant acted
under the authority OF his position his conduct
free from deadly intent as from malice revenge
The usage and custom OF sailors and their general
treatment OF each other would also be deeply in
volved In the question OF intent. Although custom
could not justify criminal act, 1t might, and ne
cessar1y would go far IN determining the intention
OF the offender aud freeing his conduct from such
Interpretation. The witnesses had all commenced
civil actions against the owners OF the vessel and
this fact undoubtedly led 10 exaggeratons 10 their
statements ,h OF s case me % under
witnesses was alluded to. The government had
locked up It's witnesses 10 retain them, while tho
men that could testify on behalf Of the prisoner
scattered throughout the country and could not be
had With these remarks the counsel for the defence
began 10 Introduce their evidence.


JOHN M'vEETys TESTIMONY.


am mariner; was on board the ship James Fos-
n e & be- G ~, as tn was puc
the first part Of the voyage; the mate sick the
latter part OF the voyage: l knew John Stokes by
the name OF "Ginger;'' he was about twenty-five
years OF age; he was healthy man when he came
on board; about half across the sea Stokes went
into the hospital; he was on my watch; knew
Gynn; never knew hIm before this voyage; never
Glynn strike Stokes; | saw Stokes lace bleed
ing: he appeared to be going about mis- work:
| didn't see the wound; didn't him alter he
went into the hospital; Glynn was ON duty all
day; never saw Glynn strike Stokes eighteen
persons died on the vessel six lost overheard;
four fell from the yard: had very rough weather; 1t
was something unusual to have such weather: the
vessel was kept clean the generality OF ships;
Stokes attended 10 his duty far as he knew how;
never heard any complaints that he didn't do his
he had never been 10 sea before l don't know any
thing OF the character OF Gynn; have seen hm strike
some one else; saw him strike man by the name
OF Foster: we called him "LiverpOol.r the surgeon
so far as know attended to his duties.


10 the Court-The four men that were lost from
the yards were ordinary seamen. the passenger
corps did nothing but ordinary ship duties inside.


TROUBLE ABOUT WITNESSES.


After the examination OF the last witness thero
was hitch In the proceedings. Mr.. McGrath slated
that the surgeon OF the vessel very important wit
ness on the part OF the defendant, was In Jail on
staten Island, and had been expected to be present.
but through some misunderstanding the defence had
been unable to secure his presence.


Judge Benedict stated that inasmuch as Il was n
criminal case he was unwilling to compel the man
10 proceed In the absence OF an important witness IN
his behalf and the court was adjourned I'll three
O'Clock.


Al three O'Clock the absent witness had not been
brought IN, aud the court ad, ,Ourne1 until Monday,
at eleven O'Clock.


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