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. 

Notes

'I last saw William Saunders, the mate of the said vessel, alive on the morning of August 6, 1897, on the left side of the forecastle head of that vessel. It was between nine and ten o'clock of that morning. He was shot at that time and place by John Andersen, the cook of the vessel, and the prisoner here. I saw him shoot him. I was at the wheel of the vessel, in the wheel house, just aft of the after cabin.

'I heard a report of a shot in the captain's cabin, which was connected with the wheel house by the after companionway. Immediately after, I saw John Andersen, the accused, come running up the after companionway, and through the wheel house, with a pistol in each hand, and one in his hip pocket. He ran up to John Lind, who was standing amidships by the rigging of the middle mast. He said something to Lind, but I did not hear what it was. I heard him sing out to the mate, Saunders, who was up on the cross-tree of the foremast, at work in the rigging, and say, 'Come down, Mr. Saunders.' The mate said, 'What do you want, steward?' In a little while the mate finished the job, and started down the rigging. When about midway down, and when the cook, Andersen, was standing on top of the forward house, the mate started down, and said, 'What you got in your hands, cook?' 'I got guns,' he says. 'Where you get them?' says the mate. 'Down in the cabin,' he says. The mate came down, and stepped on the forecastle head, not on the forecastle house. Then Andersen fired a shot. The mate reeled and faced him, and said. 'For God's sake, don't shoot me, cook.' The

cook fired another shot, and the mate kept on reeling; and the cook fired another one, and a third one, when the mate fell, and he shot him once after he had fallen. Then the cook sung out to the men who were in the forecastle: 'I am in charge of this vessel. I am next to the mate.' He sung out again: 'Won't you fellows come out?' They came out, and I saw them throw the mate's body overboard. I was at the wheel all the time. Then he marched the whole gang aft, and went down in the cabin, and brought the captain up and threw him overboard. He then said, 'If any man like, he can put me in irons.' He had two or three pistols,-one in his hands then. He had said he was in charge of the vessel, and had ordered the men to throw the mate and captain overboard. I was at the wheel all the time. Then he says, 'Boys, come down and have a drink.' He went down in the captain's cabin, and handed a bottle of whisky, about to  parts full. He gave each a drink, and took one himself. Then he marched the whole gang up on deck, just outside the door of the wheel house, and said, 'You know all you men is guilty for helping me throw the bodies over the side.'

'The Spaniard told him to keep the vessel off; to clew up the gaff topsails and jibs, the outer jib, and make for port. The cook said: 'Damn! you want me to get hung.' We said: 'No, steward, we don't want you to get hung.' All the time he was armed. After a little he said to the Spaniard: 'You the only sensible man amongst the crowd. I want to speak to you.' Then he called John Lind, afterwards, and spoke to him. I don't know what he said. He ordered the men to do so and so. I left the wheel, and went to the forecastle. The rest of the men came forward to get their clothes. He ordered us to get our best clothes, and no more. He said, 'Take no discharges, bank books, nothing.' He ordered the men down in the booby hatch to get up a barrel addressed to the American consul at Buenos Ayres. Then he told me to go down in the galley to tap some paraffin oil. I said 'No.' He says, 'You go,' and handed his pistol in my face. 'All right,' I says, 'steward.' I filled three buckets and passed them up, and Andrew March took it and threw it on the deck load. He was standing there armed all the time. Then he (the cook) ordered me to take the wheel. I went. The first fire commenced at the booby hatch. The next was forward. The boat was lowered, and provisions put in it. * * * It was twelve or one o'clock when we left the Olive Pecker. No vessels were in sight which could have picked up the bodies of the mate and captain.'

He then gave the particulars of the sail to the shore, the arrest, etc.

This witness further said that, when Andersen called to Saunders to come down 'The mate asked him, 'What do you want, steward?' He finished his job, and hung the marline spike around his neck, and came down the rigging.

The marline spike had a half hitch on the point, which put the point upwards. That is the way sailors do it, to keep the point from striking them as they go up and down the rigging.

'There was nothing to keep me from seeing the mate in the rigging, and when he came down, and all along the vessel on her port side to where the shooting occurred. The sails were all swinging to starboard. The lumber was so piled on the deck that a man running along on it would run right on top of the forward house. John Andersen was standing on top of the forward house when he shot the mate, and the mate was standing on the forecastle deck. The forecastle deck is about three feet lower than the top of the house where the cook was standing. The body of the mate was lying, when picked up, on the forecastle head, on the left side of the vessel.'

On cross-examination he said: 'I mean to tell the jury that five of us were intimidated by that one man, the cook,-the cook with the pistols. He intimidated us so that when he ordered us to burn the ship we obeyed. He was following us up all the time. He ordered one to go there and another to go there, and another one there. We had to follow the man at the point of the pistol, or else get killed. We did what we were told to do through his pistol. * * * When the mate came down out of the rigging, he asked the cook, 'What have you got in your hands, steward?' The steward said, 'I got guns.' The mate came down, stepped on the forecastle head, and John Andersen fired a shot. The marline spike was not in the mate's hand, but was hanging around his neck, with the point up. I am sure of that, though I was a hundred and fifty feet away. I did not have a glass. The mate was standing with his hands at his side, with the marline spike around his neck. He did not make any hostile demonstration towards the cook. He did not come at him to strike him. I am positive of that. I do not know the mate had threatened the cook's life.'

Lind testified:

'I last saw Mate William Saunders on the 6th of August of this year. He was killed that morning by John Andersen n  the forecastle head, on the left or port side thereof. I saw Andersen just before the shooting of the mate that morning, coming up from the cabin through the after companionway and through the wheel house. I was standing amidships. He came up with a revolver in each hand. He came right up to me, and asked me where the mate was, and said, 'I have killed the captain, and now the mate goes, too.' The mate was then aloft, in the rigging of the foremast. I went then down on the lee or starboard side of the vessel to the forecastle house. I went and called the watch below in the forecastle house. I said, 'You better look out, because the cook is on deck with revolvers,'

As I was calling through the window, I could not see on the left of the vessel. While I was calling to the men, I heard a shot on the port side, on the forecastle head. I heard three or four shots. I don't know-exactly know-how many. I heard the steward call to the men to come out,-for all of them to come up there. He was calling the men in the forecastle house. He said he wanted us to throw the body overboard. When I us to throw the body overboard. When I at the wheel, Martin Barstad. The mate was on the forecastle head, with his face downward. He had a marline spike tied around his neck. A marline spike is used for splicing ropes,-an instrument that all sailors carry aloft when they go up to splice a rope. It is carried around the neck by a long lanyard, and a half overboard. Andersen was armed all this time his legs. We threw the body overboard. Then the cook told us to come aft, and get the captain's body overboard. We went in the after cabin, and found the captain sitting in his chair; sitting like this, sir, with his hands folded in his lap. He looked as if he was alive. I saw blood on the side of his head, on the left side. We were told to take him up by Andersen. He helped. He was taken up and thrown overboard. Andersen wasarmed all this time. Before throwing the captain's body overboard, Andersen took hold of the captain's arm and felt his pulse. When the body was thrown overboard, Andersen cursed it. The captain's body was sitting in a chair in the after cabin, near the sofa on the starboard side of the cabin. He was facing forward. I had only been in the cabin once before, when we were in Boston. On American vessels, seamen do not go in the captain's cabin unless they are sent or called there. There are doors opening from the forward cabin into the after cabin, and from the mate's room into these cabins.

'After the captain's body was thrown overboard, Andersen told us to go down, and he would give us a drink. We went down in the cabin,-in the forward cabin, where the diningroom table was,-and got a drink. I don't recollect whether Andersen drank with us or not. There was not much liquor in the bottle; a little over half a bottle, I think; not enough to make any one drunk. I didn't see any one drunk. After taking a drink, we went up on deck, and talked about making the small sails fast. The Spaniard and myself suggested that the small sails be made fast, and to make for land. This was not done. Andersen said, 'No; keep her up to her course,' she was off a little. 'Keep her up to her course,' he said; 'you want me to be hanged?' He then said to the Spaniard: 'You are about the sensiblest man. I want to speak to you.' I did not hear what he said to him. He then called me. I went to the lee side of the wheel house and he asked me what I thought was best to do with the vessel. I said, 'The only thing we can do now is to try to make for some land.' He said, 'No; nothing is go-

ing to be done but to destroy the vessel.' He did not say anything more to me after that. If he spoke to any of the rest, I didn't see or hear it. He then ordered everything to make ready for to leave the ship. The old boat sail was all tore up, and I started to patch that. I was engaged about it about an hour, I should think. He then gave orders to lower the boat. Me and the Spaniard lowered the boat. It was the big boat you see hanging at the stern in the picture. Me and the Saniard did lower the boat, and Andrew March went down and unhooked the tackle, and we hauled the boat up alongside the vessel, and got some provisions down there. Then the cook called Andrew, and he went up. After I was through with that, I went up on the house again, and I saw fiames coming out of the after hatch. She was afire then. Then they all went down in the boat, and all hands cut the boat adrift, rigged up the mast, and started to sail. The cook helped us to rig up the mast and sail. He was armed all that time with pistols. I do not think any other members of the crew had pistols. I did not see any of them have pistols. * * * There were no vessels sighted after the bodies of the captain and mate were thrown overboard which could possibly have picked up the bodies.'

On cross-examination this witness gave an account of a difficulty between the cook and the captain that morning about the captain's dog. About 8 o'clock the captain's dog was down by the galley door, and the cook threw some water on him. The dog ran up on the deck load, 'hollering.' The captain came up, and said to the cook, 'Did you throw hot water on that dog?' Andersen replied that he did not throw hot water on him; that it was cold. The captain felt the dog's back, and then called the cook a liar, cursed him, and struck him. Lind did not see the captain strike the cook, but heard the noise in the galley. Shortly after this the cook appealed to the mate, 'Won't you protect me until we get to port?' To this the mate replied, 'Get to port! You will get killed anyhow,' or something like that. "Go to hell! You will get killed anyhow,' or something like that.'

March testified:

'After the shooting the cook came and called us out of the forecastle. He says: 'Come out here, boys. Lower the boat and put me ashore. The captain and mate is dead, and I am in charge of this ship.' I got out of the bed and put on my shoes in a hurry, and the cook came back a second time and says, 'Come out here, won't you? Come out here, Manuel;' and he says, 'Yes.' We went out, and went on the topgallant forecastle, and he ordered us to throw the mate overboard. The mate was lying on the forecastle head, on the left-hand side. The sails of the vessel were swinging at that time to the starboard, which left the left-hand side of the vessel clear, back to the wheel house. The cook was armed when he ordered the

mate's body to be thrown overboard, and he claimed then to be in charge of the vessel. I do not remember whether he caught hold of the mate's body and helped to throw it overboard, or not. The mate had a marline spike tied around his neck when the body was thrown overboard. A marline spike is a big awl used to stick through the rope in splicing it. When it is used by a man going up and down the rigging, a half hitch is taken over the point, so it won't stick in his legs, or get between the rigging going down. When it is around the man's neck, it is tied with a string, and with a half hitch on the point. He can't use it, without taking the hitch off, so as to hurt anybody with it. The top of the forecastle house, where the cook was standing when he shot the mate, is about three feet higher than the forecastle deck, where the mate was standing when he was shot. To get to where Andersen was when he was shot, the mate would have had to step up those three feet on top of the forecastle house. * * * I couldn't say whether the half hitch was around the point or not.

'After the mate's body was thrown overboard, we were ordered to the cabin, to take the captain up and thrown him overboard. The cook was armed at that time. When the mate's body was thrown overboard, Andersen swore oaths at it. When he swore oaths at the body, the Spaniard asked him not to curse the body that way. We all obeyed the cook, and went aft, and found the captain's body in the after cabin. (Here the witness identified the diagram, showing the inside of the after cabin, and marked 'No. 2.') The captain's body was found sitting in his chair, dead, with both arms folded in his lap. He looked as if he was alive, with his head back on one side, and a would in the left part of his head, about an inch above the left ear. The captain was sitting in his chair, near the sofa, on the starboard side of the vessel,-the point marked on the diagram 'A.' John Andersen ordered the captain's body to be taken up and thrown overboard. Andersen was at that time armed. He assisted in throwing the body overboard. He swore at it when the body was thrown into the sea, calling it 'a mean bastard.' After the body of the captain was thrown overboard, the steward ordered us to get ready the boat. He then invited us down into the cabin to get a drink of whisky. There was about two-thirds of a bottle of whisky. He drank with us. After that was done the boat was got ready. Kerosene oil was thrown over the deck load, and the ship was set on fire. Then we made for land in the sail boat. It was about two hours, I taking my dishes back from my breakfast, I before we left the Olive Pecker. At the time these bodies were thrown overboard there was no vessel in sight which could possibly have picked them up.'

     *     *

'That morning before the captain was shot and before the mate was

shot, I heard a difficulty between the cook and the captain about the captain's dog. As I was going forward from taking my dishes back from my breakfast. I heard the dog holler. I was standing on the forecastle house. I saw the dog come out, and run aft. The captain came out, and went to the galley, and asked the cook if he had been throwing water on the dog; and he said, 'No.' The captain went back, and felt the dog. Then I saw the captain go in the galley, but I did not know what he did there. This was about fifteen or twenty minutes, I think, before the captain was shot. I had been at the wheel of the Olive Pecker many times. While standing at the wheel, in the wheel house, looking forward, with the sails swinging to the right or starboard side of the vessel, you can see all the way along the left-hand side of the ship, on top the forecastle house, or a man standing on top the forecastle house. The deck load did not interfere with seeing that.'

On cross-examination: 'I say this man intimidated us all at the pistol's point. He ordered us to throw the mate overboard. I obeyed his orders because I wanted my life a little longer. After the captain was thrown overboard, we all went into the cabin and took a drink. I can't say that we took a drink at the pistol's point, but he made us throw the mate's body overboard. He did not tell me he would kill me if I did not, but I knew enough to know he would do it. There were four of us, altogether. I did not have a knife. I do not know whether I went ahead, or who went ahead, when we went into the cabin to take a drink. We had to throw the body of the captain overboard because the cook ordered us to do it. I took orders from the cook because he gave me to understand he was in charge of the ship. At the time I knew he was, because he had all the guns. It makes a big difference when he had all the arms.'

Berrial testified:

'I last saw Mate Saunders alive on board that vessel on the morning of the 6th of August, 1897, when the vessel was about a hundred or a hundred and fifty miles off the Brazilian coast. On that morning I left the wheel of the vessel about 8 o'clock, being relieved by Martin Barstad, and went after my breakfast; then went to the forecastle, and to my cabin. While I was lying down, after that,-I do not know how long,-I heard the captain's dog holler. Andrew March came in the forecastle, and says, 'The captain is having a racket with the cook;' and I says, 'What can we do? Let him racket,' says I; and it was a little while before John Lind came and knocked at the window where I was sleeping. When he finished talking to me I heard the report of four shots. I went in the forecastle, in a narrow place between the engine room and my bunk. I went a there because I thought the cook wanted to kill us, too. The engineer jumped on my bunk, and got out, too. I heard the cook sing out in the door,

'Come out here, boys! Come out here quick!' 'Yes, sir,' says I, 'Yes, sir,' says I, 'let me finish dressing.' He says: 'Come out here. I am in charge of the vessel.' I went out, and the first thing I saw was the mate lying on the top of the forecastle deck, on the left-hand side, with his face downwards. The cook says, 'Throw him overboard,' and then I says: 'Don't, cook. Don't throw him overboard. He's alive.' He says: 'Throw him overboard. He's dead enough.' We threw him overboard, and after we threw him overboard the cook says: 'Now, go aft and pick the captain up.' When he threw the body overboard, he cursed at the body. Then he ordered the men aft to throw the captain overboard. All the while he was armed with pistols. We went under his orders, and into the captain's cabin. When we got in the cabin we saw the captain sitting in his chair, with both hands in his lap, and his head leaning slightly to one side, and on his breast. I thought he was alive. I saw he had a bullet to go through near the left side of his head. His body was taken up and thrown overboard. When his body was thrown overboard, the cook cursed it also. After it was thrown over, he said. 'Come on boys, I will give you a drink.' We took a drink, and after we took a drink all came on deck, and I said, 'We will make the staysails and the topsails fast, and, if a squall striked her, we can manage the other sails, and we go right into Rio de Janeiro or Bahia.' I sung out to Martin Barstad, at the wheel, 'Keep her off;' and the cook says, 'No; I don't want to go to the land.' He was standing close to the rail. And he said, 'Do you want me to be hung? There is nothing to be done but destroy the vessel,' he said. Then he called me and said to me, 'You are the sensiblest man on board this vessel, and I want to speak to you.' 'All right, cook,' I says. He took me on top of the galley, and says, 'I am a murderer, and I killed these people to save my life and your lives. Now, you fellows,' he says, 'you are guilty of helping me throw the bodies overboard, and bofore you leave the vessel you will be as guilty as I am. You ain't got nothing to fear.' Says he, 'Many a vessel leaves port, and they don't know where they go, and there's nobody to look after us for a long, long time, and we will have time to run away.' I told him I had nothing to fear with the vessel in port. I says: 'Look here, cook, destroy the vessel! It's a terrible thing. Its worse than what you have done already. Call all hands here, and tell us what you want to do, and where you want us to sail ashore, and we will help you as much as we can; and let us go into port.' 'No, no,' he says; 'that won't do. The vessel must be burned.' He ordered a small boat to be made ready, and everything was made ready, and then he took us down into the cabin, and he says: 'I didn't kill these people to rob the vessel. I grant you all, fellows, clothes out of this large chest.' And we went in, and everybody took some clothes; and the cook says:

'You fellows can put on your best clothes;' and he gave me a suit of clothes, and he says, 'You don't want to take anything.' So we went forward and put on our best suit of clothesand the cook had us to pour oil on the deck. The cook called us to hurry up and spread the oil on the deck. I didn't want to do this. I went to the forecastle, and the cook came and said: 'What are you doing there? Come and give your hand with this oil.' I says: 'Yes, cook. Let me finish shaving, and I go.' When I went on deck I could see that the oil was already. It had been spread over the deck. The cook then told us to lower a boat, and it was lowered; and Andrew March unhooked the tackle, and we took the boat alongside the vessel, and I jumped in, too. Provisions were then put in the boat, and, when everything was ready, Andersen called to me, 'Come up and light the fire.' 'Well,' I says, 'let me keep the lookout on the boat. It might smash against the vessel.' So he called Andrew March, and the first time he called Andrew he did not come; so he called him again, in wl d words, and March went up.'

On cross-examination: 'Q. After the cook here had killed the mate, didn't he tell you you might put him in irons? A. Yes, sir; he came and he says, 'Now, you fellows can put me in irons, and carry me to port, if you want.' Q. And give me to the American consul? A. No, sir; the same words I told you, sir. 'Now, you fellows,' he says, 'can put me in irons, and take me in port, if you want.' I says, 'No, no, cook; I no put you in irons,' because he looked right in my face; and I says, 'Why don't you throw your revolvers away?' Q. He offered to give himself up to you, holding out his hands, and said: 'Put me in irons?' A. He didn't throw his revolvers away. Q. He didn't? A. No; he didn't. Q. Did he hold out his hands to put him in irons? A. With his revolvers, yes; and no, no.' A. Do you mean to say he had the revolvers no, no.' Q. Do you mean to say he had the revolvers in his hands when he offered you to put him in irons? A. Yes, sir.'

Horsburgh was asleep in his berth, in the after cabin, when the captain was shot. What he supposed was the noise of the shooting of the captain awakened him, and then Andersen came to the companionway, and asked him to come on deck,-that he had killed the captain. He came on deck, and went aft along the starboard side, where he told the crew that the cook had killed the captain. Directly after the shots, the cook came forward, shouting: 'Come out, boys. I am in charge of the vessel,'-and ordered the mate's body to be thrown overboard. The mate was lying with his face down on the port side of the forecastle head, with a marline spike hanging about his neck. After the mate's body was thrown overboard, the cook ordered them to go aft and throw the captain's body overboard. 'We went down in the

cabin, and found the captain in the chair; so we took him up on deck, and threw him overboard. Then, after that, he told us to go down, and he would give us a drink; so we went down in the cabin, and had a drink.' After that the cook ordered them to get the boat ready with provisions, etc. The cook was armed, and witness was frightened. The burning of the vessel, and the escape in the open boat, as told by this witness corresponded with that of the others. On the cross-examination the difficulty between the captain and the cook about the captain's dog was reiterated.

Defendant, Andersen, testified in his own behalf:

'It was just after breakfast, and the dog was standing at the galley door. He used to keep himself around there all the time. The captain didn't want him to stay at the galley door, and I took some water I had left in a bucket,-some dirty water,-to throw it onto the dog, as I always used to throw some water on him, and he used to run and holler. I took the bucket, and there was a little water left at the bottom of it. He was standing right at the door, and I had been giving him his breakfast. As the dog turned the bucket slipped in my hand. I had the handle on the edge of it, and it hit him here in the leg, and he ran up on deck and made a noise. I was looking around there for some place to run into and hide, as the captain was coming down there into the galley, and I was standing in the middle of the floor of the galley, facing the galley dresser. He struck me in the side here, and that sent me right on top the red-hot stove,-on top the pots and pans. He commenced to curse me and threaten me, and everything, and I pleaded to him. I says: 'Captain, don't hurt me. Don't hurt me, captain.' He looked at the ax, and he looked up through the slide. There is a little slide in the galley. He saw John Lind standing on top there, and he looked at me. He says, 'You whore's son,' he says, 'I will have the heart out of you.' And there he left me standing. I had cut them two fingers into my knuckles. The mate came along, and it was my last hopes, in that vessel, to see, maybe, another day; I had been sleeping in the galley for a week. I didn't know whether I would live to see the next day or not, so I turned to the mate, with tears rolling down my cheeks, and I si d to him, 'Mr. Saunders,' I says, 'won't you protect me until we get into port?' He turned around to me with scorn. He says, 'Go to hell,' he says, 'you will get killed anyhow.' Then I did not know what I was doing. My mind was in that condition I didn't know whether to run overboard, or to stay there and go and hide. I didn't know what to do. So I went up in the galley slide, and looked around to see if I could see any vessel. Then I made up my mind if I should see any vessel I should take a board and jump overboard. So there I was. My basket of dishes was standing upon the dresser, all dirty, after breakfast, and I was washing them, and I saw at

the time it was twenty-five minutes to ten then. I looked around, and I didn't know if I had washed my dishes at all. Of course, I was completely out of my head then, so I thought about the cabin. Now, I used to sweep that cabin every morning, and dust it, and everything, before nine o'clock. I used to have my dishes done in the galley before this time, and I had my dinner to have ready before twelve o'clock. So I started into the cabin, thinking that the captain would be on deck, and I came down in the cabin. He was sitting inside of the door in a chair like this, although bigger, and he had a bottle on this here lounge which was alongside of the stool or the chair. He glared at me, and he looked fairly black in the face with rage. He blurted out and cursed me when I came into the cabin. Well, I didn't know what to do. If I should run on deck, I would have to run overboard. That was the only way I have to see out of it. I commenced sweeping the cabin, and started into the mate's room first. I saw the mate's gun lying on the shelf, and I took that down; thinking, if worst come to worst, I will have to defend myself. So I finished the cabin, and started into the captain's room. I passed by him in that direction [indicating by gesture], and he took up that bottle like this. He says, 'You whore's son!' Then he took it up like this, as if to split my head open, when I pulled my gun out and fired. The bullet struck him in the left temple. He fell into the chair, and I ran into the captain's room. Then I thought about the mate. I ran into the captain's room then, and got his two guns. He used to keep one gun in under the pillow, and one on the shelf. I ran up on deck, and I didn't know where the mate was then. I came up to John Lind, and he was at the main rigging. I says, 'Where is the mate?' He says, 'He is aloft.' I looked up there, and I think I said something of calling him down, but I don't think I did do that. The mate came down and before he came down to the _, piece next to the rail, he says, 'Where in the hell did you get them guns?' He says, 'And where is the captain?' I never made no answer to him, but I stayed on top of that house there as the mate came down, and he had this marline spike around his neck. I will just show you how he had it, if you please. He had this hitch on this marline spike, as represented to you before. He came down like this, and walked up like this [indicating by appropriate gestures], (walking towards the bowsprit), and turned in this direction (to the right), and came towards me in that direction (on the starboard side). He took the half hitch out of the marline spike, like this, and the marline spike was hanging down when he came towards me. I was standing there and had the guns then. I had three of them, and I held them in my hand all the time. I had an apron around my waist, and I had no pockets here in the pants. He got this hitch off the marline spike, and came around to me like this [indicating by proper gesture],

to take the marlin spike off his neck and shove the marline spike into me. I pulled the gun and shot him. The first shot struck him here somewhere (in the side). He was still coming towards me, and I shot twice or three times together, when the man fell dead. In the meantime John Lind has been running into the lee side of the house. Now, he stated here yesterday to you gentlemen that I cam up to him and says, 'Now the mate will go, too.' But that belengs on the lee side of the house; to that man. When he came there he told them, 'Now the mate will go, too.'

'Q. You mean by that that you didn't say it at all?

'A. No. sir: that belongs to John Lind, and into the lee side of the forecastle. That is where that belongs. So I stood there, and John Lind-He was the man that came up first, and there was nobody else came up. So I says, 'Men,' I says, 'ain't you comint up?' I says. In the condition I felt, I felt actually frightened of the men, the way I was, because I was completely gone. We throwed the mate overboard. I helped them, also, so far as I can remember. And we took the captain out of the cabin and threw him overboard. And now, when this was done, I told them, I says, 'Now men,' I says, 'you can do as you like with me,' I says; 'you can put me in irons, and take me into port, and give me up. You see I had to defend my own life.' 'Yes,' they says, 'we all know that.' There I was, broke down completely, like a child; and here they are, coming up here yesterday to put everything onto me.'

He also gave an account of the burning of the vessel and trip to the shore. On cross-examination he admitted that he was about three feet from the mate when he shot him; that he was standing on the forecastle house, and the mate was down on the forecastle head; that the mate asked him not to shoot. As soon as he had killed the captain, what came into his head then was the mate; that he got the captain's pistols; that he ran up on deck through the pilot house, where Barstad was, and to Lind, who stood amidships, and asked where the mate was; that Lind told him the mate was aloft; that he got on top of the forecastle house, and, in the excitement, may have called him down. He denied having asked the men to throw the mate's body voerboard, but admitted that he asked them to throw the captain's u149, affirmed. to take a drink, but admitted that he may have got the whisky. He denied ordering the vessel to be burned, and said that it was the engineer's suggestion. He admitted that he took the captain's watch and sold it, and that the compass was thrown overboard before they reached the beach.
Uncategorized United States Supreme Court decision