Page:Federal Reporter, 1st Series, Volume 10.djvu/171

 THE FAUL KBVBBB. 159 �come to the door of the galley and renewed tHe challenge; that the instrument in his hand was a can-opener and not a knife. When the mate and captain, upon hearing the pistol shots, immediately went to the galley, no resistance was made by the cook; but he said he was sorry he h ad not killed him. No complaint was made of the subse- quent conduct of the oook, nor did he at any time show any evidences of an ugly disposition. Several times during his confinement he rejjuested to be allowed to go on duty. Similar requests in his behalf were m^de by others of the crew, none of which were acceded to by the captain. The pistol was not o\yned by Jackson, but had becn given to him to be exchanged abroad for some foreign article. It was scarcely capable of inflicting a serious wound. The bail from it lodged in the steward's wrist, but inflicted only a flesh wound, which dieabled his hand for two days only. �The captain was examined before the consul, and his deposition ^ae also taken in this case. From these it does not appear that he ever instituted any inquiry into the particular causes of the affray, but he was familiar with the previous quarrelling between the cook and the steward, as he had shoitly beiore, when appealed to by the cook for eome protection agairist the steward, told him to get along as well as he could. From the violent character of the steward it is not certain that the cook did not have reasonable cause to believe himself in danger when the steward approached him from the galley door before he fired; but the fact that he had a pistol at hand, ready for use, and his language when arrested immediately after firing, show, not only that he was at the time in great passion, but also that his act was not merely an act of self-defence. The circumstances, while not sufficient to furnish a justification, do show much palliation in the degree of his offence. His long subsequent confinement by the master until the arrivai at Yokohama was considered by the consul in his decision a sufiicient punishment. In my judgment it was alto- gether more than was warranted at the hands of the master, having reference only to the character of the cook himself, and it may be that the confinement of the cook till arrivai at Yokohama was quite as much an act of prudence and protection to him, in consequence of the quarrelsome and dangerous character of the steward, and the captain's belief that it was necessary to keep them apart. Aside from this consideration, the evidence does not show sufficient in the general behavior of the cook to warrant the prevention of his subse- ��� �