Andersen v. United States

Andersen was indicted in the circuit court of the United States for the Eastern district of Virginia for the murder of William Wallace Saunders on an American vessel on the high seas, of which vessel Saunders was the mate, and Andersen the cook.

The indictment charged that Andersen, 'on the 6th day of August, in the year of our Lord 1897, with force and arms, on the high seas, and within the jurisdiction of this court, and within the admiralty and maritime jurisdiction of the said United States of America, and out of the jurisdiction of any particular state of the said United States of America, in and on board of a certain American vessel, the same being then and there a schooner called and named Olive Pecker, then and there belonging to a citizen or citizens of the said United States of America, whose name or names is or are to the grand jurors aforesaid unknown, in and upon one William Wallace Saunders, sometimes called William Saunders, then and there being on board said vessel, did piratically, willfully, feloniously, and of his malice aforethought make an assault, and that the said John Andersen, alias John Anderson, a certain pistol then and there charged with gunpowder and leaden bullets, which said pistol he, the said John Andersen, alias John Anderson, in his hand (but which hand is to the said jurors unknown) then and there had and held, then and there piratically, feloniously, willfully, and of his malice aforethought did discharge and shoot off to, against, and upon the said William Wallace Saunders, sometimes called William Saunders, with intent him, the said William Wallace Saunders, sometimes called William Saunders, then and there to kill and murder, and that the said John Andersen, alias John Anderson, with the leaden bullets aforesaid out of the pistol by the said John Andersen, alias John Anderson, discharged and shot off as aforesaid, then, to wit, on the said 6th day of August, in the year of our Lord 1897, and there, to wit, on the high seas as aforesaid, in and on board of the said American vessel, and within the admiralty and maritime jurisdiction of the said United States of America, and within the jurisdiction of this court, and out of the jurisdiction of any particular state of the United States of America, piratically, feloniously, willfully, and of his malice afoe thought did strike, penetrate, and wound the said William Wallace Saunders, sometimes called William Saunders, in and upon the head of him, the said William Wallace Saunders, sometimes called William Saunders (and in and upon other parts of the body of him, the said William Wallace Saunders, sometimes called William Saunders, to the said jurors unknown), giving to him, the said William Wallace Saunders, sometimes called William Saunders, then and there, with the leaden bullets aforesaid, so as aforesaid discharged and shot off out of the pistol aforesaid by the said John Andersen, alias John Anderson, with the intent aforesaid, in and upon the head of him, the said William Wallace Saunders, sometimes called William Saunders (and in and upon other parts of the body of him, the said William Wallace Saunders, sometimes called William Saunders, to the said jurors unknown), several grievous, dangerous, and mortal wounds; and the said John Andersen, alias John Anderson, did then and there, to wit, at the time and place last above mentioned, him, the said William Wallace Saunders, sometimes called William Saunders, piratically, feloniously, willfully, and of his malice aforethought cast and throw from and out of the said vessel into the sea, and plunge, sink, and drown him, the said William Wallace Saunders, sometimes called William Saunders, in the sea aforesaid, of which said mortal wounds, casting, throwing, plunging, sinking, and drowning the said William Wallace Saunders, sometimes called William Saunders, in and upon the high seas aforesaid, out of the jurisdiction of any particular state of the United States of America, then and there instantly died.

'And the grand jurors aforesaid, upon their oath aforesaid, do say that by reason of the casting and throwing of the said William Wallace Saunders, sometimes called William Saunders, in the sea as aforesaid, they cannot describe the said mortal wounds with greater particularity.'

The case coming on before Goff, circuit judge, and Hughes, district judge, defendant 'demurred to the said indictment on the ground that it does not specify the locality on the high seas where the alleged offense occurred, and for other reasons not assigned. Thereupon the United States joined in said demurrer as to the said cause so assigned, and objected to the said demurrer being in any wise considered, for reasons not assigned. Whereupon, after argument, the court overruled the said demurrer for the cause assigned as aforesaid, and admonished the accused that he must state any other grounds of demurrer on which he relied, as the court could not otherwise consider them. No other grounds being alleged by the accused, the said demurrer was overruled.'

Defendant was duly and formally arraigned, and pleaded not guilty, and then 'moved to quash the writ of venire facias for the petit jury to be used in the trial of this particular case, on the ground that the said writ must show that said venire were summoned for the trial of this particular case, and not the general venire for offenses in general to be tried at this term of the circuit court of the United States for the Eastern district of Virginia.' This motion was overruled, and defendant excepted.

A jury was thereupon duly impaneled and sworn, and the trial proceeded with, and during its progress exceptions to the admission and exclusion of evidence and the giving and refusal of instructions were preserved by defendant. At the close of the government's case in chief, defendant's counsel moved the court to instruct the jury to bring in a verdict of not guilty, on the ground that defendant was indicted for the murder of Saunders by drowning, whereas the evidence showed that he met his death by the discharge of a pistol. The court overruled the motion, and defendant excepted. A verdict of guilty having been returned, defendant made successive motions for a new trial and in arrest of judgment, which were severally overruled, whereupon he was sentenced to be executed. Ths writ of error was then sued out, the cause docketed, and duly argued at the bar.

The bill of exceptions contained the following preliminary statement of uncontroverted facts:

'That the American three-masted schooner Olive Pecker sailed from Boston, Massachusetts, on the 20th day of June, 1897, for Buenos Ayres, South America, with a cargo of lumber under and on deck. She had on board a captain, J. W. Whitman; a mate, William Wallace Saunders, sometimes called William Saunders; an engineer of a donkey engine, William Horsburgh; a cook, viz. the defendant, John Andersen; and four seamen, viz. Martin Barstad, a native of Norway; John Lind, a native of Sweden; Juan de Dios Barrial, a native of Spain; and Andrew March, a native of Newfoundland. That the said Olive Pecker was an American vessel, belonging to citizens of the United States. That the said vessel proceeded from Boston on her course to her port of destination until the morning of August 6, 1897, when, on the high seas, and about 100 or 150 miles off the Brazilian coast, between nine and ten o'clock on that morning, the captain, Whitman, was shot in his cabin, and shortly thereafter the mate was shot on the left-hand side of the forecastle head, and his body immediately thrown into the sea. The body of the captain was also thrown into the sea. Several hours thereafter the said vessel Olive Pecker was burned, and the cook, engineer, and four seamen took to the sea in an open boat. Twenty-eight or thirty hours thereafter they reached the Brazilian coast, where, having spent the night on shore, they separated the next morning; the accused and John Lind going in a northerly direction, and the other four going in a southerly direction. That the accused and Lind within a few days reached Bahia, in Brazil. Both shipped,-the accused on a vessel called the Bernadotte, bound for Pensacola, in the United States, and Lind on a Brazilian barkentine, bound for some point in Spain. The other four men, having the Spaniard as their spokesman (he being familiar with the language of the country, and not finding an American consul), made known to the Brazilian authorities what had transpired on the Olive Pecker, with the request that telegrams be sent along the coast for the arrest of the accused, John Andersen. These four men, having secured passes on a vessel to Bahia, arrived there several days after the arrest of the accused, and were placed in charge of the American consul at that port. The accused handed to the American consul a statement, in his own handwriting, purporting to be an account of the voyage of the Olive Pecker, and also made to the American consul a sworn statement, as did also the other five men, which sais statements were duly transmitted to the department of state at Washington, and upon the call of defendant's counsel were produced for his use at the trial, but were not produced in evidence.

'At the direction of the government at Washington, the American consul at Bahia kept the accused and the five men in custody at Bahia until the arrival at that port some time in the month of September, 1897, of the United States man-of-war Lancaster, when they were put on board of that vessel, and brought into Hampton Roads, Virginia, in the Eastern district of Virginia, that being the first district into which the accused was brough after the commission of the alleged offense; and the said accused, together with the five men, was turned over by the officers of the Lancaster to the United States marshal on the 7th day of November, 1897, and were duly placed in confinement in the city jail at Norfolk, Virginia.'

The evidence introduced on the trial was given in full, and included the testimony of the four seamen, Barstad, Lind, Barrial, and March, and the engineer, Horsburgh, on behalf of the government, and that of the defendant on his own behalf. A considerable portion is set forth in the margin.

George McIntosh, for plaintiff in error.

Sol. Gen. Richards ad W. H. White, for the United States.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.