UNITED STATES V. BEAOHAM.
«(}lrcuit (Jourt, D. Maryland.
MANSLAUGHTER ON NAVIGABLE WATERS-lNDICTMENT-AVERMltNT 011' PLACE-
REv. ST. U. S. § 5844. An indictment against a captain of a steam-boat under section 5844, Rev. St. U. S.· which alleges that the steam-boat was at the time navigating the Chesapeake bay between Baltimore and Annapolis, in substance alleges that the steam-boat was being used on the navigable waters of the United States. (Syllabu8 by the Oourt.)
Demurrer to Indictment. This indictment for manslaughter, under section 5844 of the Revised Statutes, against the defendant, as captain of a steani-boat, charges, in the first count, that the defendant, by inattention to his. duties as captain, permitted a rail on the saloon deck to be without a guard, inconsequence of which Ella Martin, a passenger, stepped overboard in the dark, and was drowned. The second count charges that, contrary to section 4477 of the Revised Statutes, and contrary to his duty as captain, the defendant neglected to keep a suitable number of watchmen on said deck, by reason of which neglect of the defendant no proper measures for the rescue of Ella Martin were taken, and ahe was drowned, whereby the defendant was guilty of manslaughter. Thomas G. Hayes, for the United States. J. S. Lemmon, for defendant. MORRIS, J. The first objection relied upon in support of the demurrer is that the averments of the indictment do not show an offense cognizable under federal law. It must be conceded that the of· fense charged is within the language of section 5344 of the Revised Statutes; but it is urged that the statute must bA shown to be constitutionally applicable by alleging facts which will support the can· stitutional validity of the statute. The authority for the statute is to be found in the constitutional grant of power to congress to regulate commerce among the several states. The supreme court has construed this clause of the constitution in many cases, and, among others, in Gilman v. Philadelphia, 3 Wall. 724; 'l'he Daniel Ball, 10 Wall. 557; The Montello, 11 Wall. 411; Lord v. Steam-ship Co., 102 U. S. 541; Sherlock v. Alling, 98 U. S. 108. The result of these cisions is that, as commerce includes navigation, congress has power to regulate navigation, and to regulate steam-boats as instruments used in navigation whenever they are used on the navigable waters of the United States. .. The allegation of the indictment is that, at the date of the alleged offense, the defendant was the captain of a certain steam-boat called the "Excelsior," which steam.boat was being used in carrying pas·
UNITED STATES V. BEACHAM.
sengers on an excursion from the city of Baltimore to a certain landing on the Chesapeake bay not far from the city of Annapolis, called Ridge," and back again to Baltimore. This, in substance, alleges that the steam-boat was navigating the Chesapeake. bay beIt is not alleged tween Baltimore and Bay Bidge, near that the Chesapeake bay, so navigated, was one of the navigable waters of the United States, but it seems to me that this is a fact of such universal notoriety that the court must know it judicially, and that it need not be either averred or proved in such an indictment as the present one, based upon section 5344 of the Revised Statutes. This section declares that every captain of any steam.boat by whose misconduct or inattention to duty the life of any person is destroyed shall be guilty of manslaughter. The section does not limit the offense to the navigable waters of the United States, but is in terms without limit. It is the restriction in the constitutional grant of power to congress which limits the application of toe law. The indictment alleges facts sufficient, in substance, to give valid operation to the law within that restriction. It alleges the defendant to have been captain of a steam·boat engaged in navigation; therefore the steam-boat was an instrument of commerce. It describes that navi· gation to have been upon the Chesapeake bay, between Baltimore and a point near Annapolis; therefore, of necessity, to the judicial knowle.dge of the court, and as a fact of universal notoriety, upon the navigable waters of the United States. It is also urged against the first count that there is no sufficient averment that it was the duty of the captain to see that the rail, the absence of which is charged as negligence, was in place, and no suffi· cient averment that the absence of the rail left the place from which Ella Martin fell into the water dangerous and without protection. The allegation is that the absence of the rail left a portion of the deck ung\larded, and, by reason and in consequence of the absence of the rail, Ella Martin stepped upon the unguarded part of the deck, and fell into the water, and that it was by the inattention and neglect of the defendant to his duties as captain that the rail was suffered to be absent, whereby the life of Ella Martin was destroyed. It seems to me that the neglect complained of, and the connection with it charged against the defendant, and the consequences of the alleged neglect, could not be mare precisely stated. The second count is based upon section 4477 of the Revised Statutes, which requires passenger steamers, during the night, to keep a suitable number of watchmen on each deck, to give alarm in case of accident. The allegation is that the defendant, contrary to his duty as captain, did not, on the night of the day stated in the indictment, keep a suitable number of watchmen on the saloon declt of the steamboat, by reason of which neglect no proper for the rescue of Ella Martin were taken, for want of which measures Ella Martin was drowned, and that, by this neglect of his duty as captain of the steam-
boat, the life of Ella Martin was destroyed. Notwithl3tanding the 'many ingenious objections urged' by defendant's oounsel this second count of the indictment. I think it is good, and c9ntains every necessary averment. The demun'er is ol1erruled.
UNITED STA,TES t1. WILBON.
(Di8fJrict Court, D. Ma88achusetts. November 80, 1886.)
PBNSIONS-INDIC'tMENT-SWFICIENCy-REV. ST. OF JUNE 20. 1878.' :
U. S. § 5485-ACT Oll' CONGREB8
An indictment the language of section 5485, Rev. St. U. 8., charging the accused with receiving an excessive fee for his services "in prosecut· ing a pension claim, " sufficiently charges him with receiVing the same "in a pension case;" the languaA"e setting forth the elements necessary to constitute the crime. and apprise the accused with reasonable certainty of the accusation against him. s
Motion in Arrest of Judgment. G. M. Stearns and J. R: Reed, for the United States. Edward Avery, for defendant.
NELSON, J. By Rev. St. § 4785, under the title "Pensions," it is provided that "no agent or attorney or other person shall demand or receive any other compensation for his services in prosecuting a claim for pension · - - than such as the commissioner of pensions shall direct io be paid to him, not exceeding twenty-five dollars;" and by section 5485, nnderthe title "Crimes," that "any agent or attorney, or any other person instrumental in prosecuting a claim for pension, - <I' - who shall directly or indirectly 'contract for, demand, or receive, or retain any greater compensation for his services or instrumentality in prosecuting a claim for pension · · · than is provided in the title pertaining to pensions, · · · shall be deemed guilty of a high misdemeanor; and, upon conviction thereof, shall, for every such offense, be fined not ex.ceeding five hundred dollars, or imprisonment at hard labor not exceeding two years, or both, at the discretion of the court." By the act approved June 20, 1878, (20 St. 243,) congress repealed section 4785, and enacted that "it shall be unlawful for any attorney, agent, or other person to demand or receive, for his services in a pension case, a greater sum than ten dollars;" and by the act of March 3, 1881, § 1, (21 St. 408,) congress further provided that "the provisions of section 5485 of the Revised Statutes shall be applicable to any person who shall violate the provisions of" the act of June 20, 1878.
ISee note at end of case.