United States v. Smith

27 F. Cas. 1165, 19 Law Rep. 91

• Court: District Court, D. Massachusetts
• Decided: March 15, 1856
• Status: Published

Opinion

SPRAGUE, District Judge,

instructed the jury that the law did not allow the fishing bounty, unless by the agreement under which the voyage was performed, the fishermen were severally to share in the bounty and proceeds of the voyage. That engaging men. for so much a thousand fish caught, or hiring them by the month or season, except the cook, was not a compliance with the requisitions of the law, and no vessel was entitled to bounty, where the fishermen did not have a share in the residue of the proceeds of the voyage, in proportion to the number of fish caught. The law made it necessary, in order to obtain the bounty, that, after certain deductions from the proceeds of the fish caught, the residue should be divided among the fishermen, according to the number of fish they caught, and that five-eighths of the bounty should be divided in the same proportion. And the owner, his agent, or representative, must swear that such was the agreement, in order to get the bounty. But in order to make the offence perjury, under the statute, the jury must be satisfied that the defendant swore to a declaration, which at the time he was aware was false. To constitute the offence, it must be proved, that, in taking the oath, the defendant knowingly swore to a declaration as a fact, which he was aware was untrue. And that might be either by swearing to a fact which he knew wa.s not true, or by swearing to his knowledge of the fact, when he knew he had no such knowledge. Rash swearing was not necessarily perjury, and the jury would inquire whether it was honestly done, or to deceive the officer and get the bounty by making a false declaration. The jury would inquire what reason the defendant had for believing that the oath he took was true. He had no participation in the voyage, and no interest in swearing falsely to get the bounty. Was the paper put into his hands as an original document, and did he receive it as such? It is in the usual form, and purported to be a genuine document. It had the genuine signatures of the master and all the fishermen, and was countersigned by the owner of the vessel. It had also the certificate of the inspector, at Provincetown, who examined the vessel before she went on her voyage, and the oath of the master of the vessel before the deputy collector, on her return, that it was the actual agreement for the voyage. Taking the position in which the defendant stood, did he honestly and in good faith take the oath, or did he wilfully swear that he had knowledge of that which he was conscious at the time he had no knowledge of?

The jury retired, and after being out a few hours, came into court and requested instruction, whether the oath must be taken wilfully and with intent to defraud ?

THE COURT

said: “It is necessary for the jury to be satisfied beyond a reasonable doubt, that the oath was taken wilfully and intentionally to deceive, or mislead, and that the defendant stated as true, what he knew to be false. If he had no intentions of stating a falsehood to mislead, it is not the of-fence charged in the indictment, there being no collusion with any officer. That it was not necessary that the defendant should have intended to defraud the government, by obtaining the bounty for a vessel which he did not think had earned it. He might believe that the vessel had been employed the full time, with the requisite crew under the proper agreement, and so was entitled to the bounty, and yet he might, under the statute, be guilty of the offence charged by swearing falsely, to induce the collector to pay the bounty.”

Under this instruction the jury retired, and returned a verdict of “not guilty.”