Whatever an agent does or says in reference to the business in
which he is at the time employed and within the scope of his
authority is done or said by the principal and may be proved, as
well in a criminal as a civil case, in like manner as if the
evidence applied personally to the principal.
Where two or more persons are associated together for the same
illegal purpose, any act or declaration of one of the parties in
reference to the common object and forming a part of the
res
gesta, may be given in evidence against the other.
The Act of 30 March, 1802, having described what should be
considered as the Indian country at that time, as well as at any
future time when purchases of territory should be made of the
Indians, the carrying of spirituous liquors into a territory so
purchased after March, 1802, although the same should be at the
time frequented and inhabited exclusively by Indians, would not be
an offense within the meaning of the before-mentioned acts of
Congress so as to subject the goods of the trader found in company
with those liquors to seizure and forfeiture.
In the district Court of Ohio, the district attorney filed on
behalf of the United States a libel or information stating that on
23 September, 1824, at and within the District of Indiana
aforesaid, one William H. Wallace, a citizen of the United States
and having a license and legal authority to trade with Indian
tribes within the territory of the United States, did take and
carry into the Indian country, to-wit, the country lying on the
north or west side of the River Tippecanoe, for the purpose of
trading with the tribes of Indians, sundry goods, wares, and
merchandises, enumerating the same; that the said Wallace did,
among the goods, wares and merchandises, carry into the said Indian
country a large quantity of ardent spirits, to-wit, seven kegs of
whiskey, and one keg of shrub, for the purpose of vending or
distributing the same among the Indian tribes, contrary to the
statute in such cases made and
Page 27 U. S. 359
provided and against the peace and dignity of the said United
States.
The libel further alleged that John Tipton, Indian agent, at
Fort Wayne within said district, duly appointed to and qualified
for that office, and being duly authorized and instructed to search
the stores and packages of traders among Indian tribes upon
suspicion that ardent spirits had been by the said Wallace carried
into the said Indian country for the purpose of being vended or
distributed among the Indian tribes therein, caused the said goods,
wares, and merchandises to be searched, and upon such search the
seven kegs of whiskey and the keg of shrub were found so carried by
the said Wallace into the said Indian country for the purpose of
being sold or distributed among the Indian tribes therein, contrary
to the statutes aforesaid in such case made and provided and
against the peace and dignity of the said United States; the said
goods, wares, and merchandises were, on the day and year aforesaid
seized by the said John Tipton, and now by him held to be disposed
of as the court directs.
The libel then proceeds to pray that the goods, &c., so
seized may be deemed to be forfeited and be disposed of according
to law.
A claim and answer were filed by William H. Wallace, attorney in
fact and agent for the plaintiffs in error, in which the
allegations of the libel were denied, and tendered an issue upon
which the cause was tried by a jury, who found a verdict for the
United States. On the trial, three bills of exception were taken by
the claimant's counsel to the opinion of the court.
The first exception stated as ground of error that on the trial
of this cause, the district attorney offered to give in evidence to
the jury the transactions and declarations of one John Davis with a
view to prove the purpose of the defendant, to which the defendant
by his counsel objected, and the court permitted the district
attorney to give in evidence to the jury the conduct and
declarations of Davis so far as he acted as the agent of the said
defendant or in conjunction
Page 27 U. S. 360
with him in relation to the charge made against the defendant in
the information.
The second exception stated that on the trial of this cause, the
district attorney moved the court to instruct the jury that if they
should believe from the evidence that had been adduced that the
defendant, as an Indian trader, did carry ardent spirits into the
Indian country, and that the same were found therein among any part
of his goods, that it is
prima facie evidence of his
having violated the acts of Congress on which this prosecution is
founded, so as to throw the burden of proof upon the defendant,
which instruction the court did give the jury, also instructing
them that an Indian trader might lawfully carry ardent spirits into
an Indian country for some purposes, as for instance, for medical
use.
The third exception was that at the trial of this cause, the
defendant, by his counsel, prayed the opinion and direction of the
court to the jury that unless it was of opinion from the evidence
of the cause that the ardent spirits mentioned in the libel of
information were mingled with the bales of merchandise at the time
of seizure and carried into the Indian territory in violation of
the act of 1820 entitled "An act to regulate trade and intercourse
with the Indian tribes and to preserve peace on the frontiers," and
whilst said spirits and goods were remaining in the Indian
territory, were seized upon by the officers of government, its
verdict must be for the defendant, which opinion and instruction
the court refused to give to the jury, but did instruct the jury
that if it should be of opinion from the evidence that the
defendant, as an Indian trader, did carry ardent spirits into the
Indian country, which were found with a part of his goods therein,
with the purpose of being vended or distributed amongst the Indian
tribes, that all the goods of said trader designed for sale under
his license to trade with Indian tribes, and seized in the Indian
country, whether all or only a part of them were found with the
spirits, are forfeited, and that the seizure thereof in a territory
purchased by the United States of the Indians but frequented and
inhabited exclusively by Indian tribes is
Page 27 U. S. 361
legal, to which refusal of the court to instruct as requested,
and to the instruction given, the defendant by his counsel
excepted, &c.
Page 27 U. S. 362
MR. JUSTICE WASHINGTON delivered the opinion of the Court.
This was an information filed in the District Court of Indiana
by the United States against sundry goods and merchandise seized as
forfeited under the provisions of two Acts of Congress bearing date
30 March, 1802, ch. 273, and 6 May, 1822, ch. 58, for regulating
trade and intercourse with the Indian tribes.
The information sets forth in substance that on 24 September,
1824, William H. Wallace, a citizen of the United States and having
a license to trade with Indian tribes within the territory of the
United States, did take and carry into the Indian country lying on
the north or west side of the Tippecanoe River, for the purpose of
trading with the tribes of Indians, certain goods which are
particularly described, amongst which were seven kegs of whiskey
and one keg of shrub for the purpose of vending or distributing the
same among the Indian tribes contrary to the statute, &c.
Page 27 U. S. 363
That upon suspicion that ardent spirits had been carried by the
said Wallace into the said Indian country for the purpose
aforesaid, the said goods, &c., were searched by order of an
Indian agent, duly appointed to and qualified for that office, upon
which search the said kegs of whiskey and shrub were found so
carried for the purpose aforesaid and were, together with the said
goods, &c., seized by the said Indian agent. The information
concludes with a prayer that the goods so seized may be declared to
be forfeited and to be disposed of according to law.
To this information, Wallace, as attorney in fact for the
American Fur Company, interposed a claim and answer which, after
protesting against the sufficiency of the information, denies by
way of plea that he did, among the goods, &c., in the
information mentioned, carry into the Indian country, lying on the
north or west of the Tippecanoe River, seven kegs of whiskey and
one of shrub for the purpose of trading, or distributing the same
among the Indian tribes as in the information mentioned.
The issue was tried by a jury, which found a verdict in favor of
the United States.
Upon the trial of the cause, three bills of exceptions, to the
following effect were taken.
The first is to the opinion of the court, which permitted the
district attorney to give in evidence the conduct and declarations
of John Davis, so far as he acted as the agent of Wallace or in
conjunction with him in relation to the charge laid in the
information, with a view to prove the purpose of the said
Wallace.
The second bill states that, upon the motion of the district
attorney, the court instructed the jury that if it should believe
from the evidence that Wallace, as an Indian trader, did carry
ardent spirits into the Indian country and that the same were found
therein among any part of his goods, it is
prima facie
evidence of his having violated the acts of Congress on which this
prosecution is founded, so as to throw the burden of proof upon the
defendant.
The defendant then moved the court to instruct the jury that,
unless it should be of opinion upon the evidence
Page 27 U. S. 364
that the ardent spirits mentioned in the information were
mingled with the bales of merchandise at the time of seizure and
carried into the Indian territory in violation of the act of 1802,
and whilst the said spirits and goods were remaining in the Indian
territory were seized by the officers of government, its verdict
should be for the defendant. This instruction the court refused to
give, and directed the jury that if it should be of opinion from
the evidence that the defendant, as an Indian trader, did carry
ardent spirits into the Indian country which were found with a part
of his goods therein with the purpose of being vended or
distributed amongst Indian tribes, all the goods of the said trader
designed for sale under his license and seized in the Indian
country, whether all or only a part of them were found with the
spirits, are forfeited, and that the seizure thereof in a territory
purchased by the United States of the Indians but frequented and
inhabited exclusively by Indian tribes is legal. This refusal and
instruction form the subjects of the third bill of exceptions.
The objection to the evidence of Davis is so fully answered and
repelled by this Court in the case of
United
States v. Gooding, 12 Wheat. 468, that it seems
necessary only to refer to that decision. That was a criminal
prosecution against the owner of a vessel under the slave trade act
of Congress, and an objection was taken by his counsel to evidence
of the acts and declarations of the master of the vessel, who was
proved to have been appointed to that office by the defendant with
an authority to make the fitments for the vessel.
The principle asserted in the decision of that point and applied
to the case was that whatever an agent does or says in reference to
the business in which he is at the time employed and within the
scope of his authority is done or said by the principal, and may be
proved as well in a criminal as a civil case in like manner as if
the evidence applied personally to the principal.
The opinion of the court in the present case is not less correct
whether Davis was considered by the jury as having acted in
conjunction with Wallace or strictly as his agent.
Page 27 U. S. 365
For we hold the law to be that where two or more persons are
associated together for the same illegal purpose, any act or
declaration of one of the parties in reference to the common object
and forming a part of the
res gesta may be given in
evidence against the others, and this we understand, upon a fair
interpretation of the opinion before us, to be the principle which
was communicated to the jury.
The instruction to which the second exception was taken having
been passed over without objection by the counsel for the plaintiff
in error, it becomes unnecessary for the Court to notice it
otherwise than to say that it meets our entire approbation.
In order clearly to comprehend the subjects embraced by the
third bill of exceptions, it will be proper to examine with
attention a few of the sections of the acts on which this
prosecution is founded.
The first commences in the 1st section by declaring that a
certain boundary line, therein described in general terms, as
established by treaty between the United States and various Indian
tribes, shall be clearly ascertained and distinctly marked in such
places as the President of the United States should deem necessary
and in the manner he should direct, with a proviso that if the
boundary line between the said Indian tribes and the United States
should at any time thereafter be varied by any treaty which should
be made between the said Indian tribes and the United States, then
all the provisions contained in that act should be construed to
apply to the said line, so to be varied in the same manner as the
said provisions apply, by force of that act, to the boundary line
thereinbefore recited.
The act then proceeds to prohibit citizens of or residents
within the United States from crossing over the said boundary line
to hunt, &c., and inflicts punishments of various degrees upon
persons who should be convicted of certain other acts of aggression
within the Indian country. By the 16th section, it is made lawful
for the military force of the United States to apprehend every
person who may be found in the Indian country over and beyond the
said boundary line between the United States and the Indian tribes
in
Page 27 U. S. 366
violation of any of the provisions of this act, and to convey
them to the civil authority of the United States in some one of the
three adjoining states or districts, to be proceeded against in due
course of law. We then come to the 21st section of this act, to
which the Act of 6 May, 1822, is an amendment, which authorizes the
President of the United States to take such measures from time to
time as to him might appear expedient to prevent or restrain the
vending or distributing of spirituous liquors among all or any of
the Indian tribes.
The 2d section of the latter act, in execution of the power
vested in the President of the United States by the preceding 21st
section, authorizes him to direct Indian agents, governors of
territories, acting as superintendents of Indian affairs, and
military officers to cause the stores and packages of goods of all
traders to be searched upon suspicion or information that ardent
spirits are carried into the Indian countries by the said traders
in violation of the aforesaid 21st section, and declares that if
any ardent spirits should be so found, all the goods of the
particular trader should be forfeited, one-half to the use of the
informer, the other to the use of the government, and that his
license should be cancelled and his bond put in suit.
The difference between the instruction asked for by the
defendant's counsel, which the court refused to give, and that
which was given in the first part of this exception consists in
this -- that the former would seem to insist (for this branch of
the exception is very ambiguously expressed, and is on that ground
objectionable) that to produce a forfeiture of the trader's goods,
the ardent spirits must be found mingled with the bales of goods at
the time of seizure in the Indian country, and that no part of the
goods but that with which the spirits were found so mingled were
liable to seizure. It is very apparent from the manner in which the
instruction which was given is expressed that that asked for by the
defendant's counsel was understood by the court below as we have
interpreted it.
But the instruction which was given asserts the law to be that
if the ardent spirits were found
with a part only of
the
Page 27 U. S. 367
goods carried into the Indian country for the illegal purpose
stated in the information,
all the goods of such trader
designed for sale under his license and seized in the Indian
country were liable to forfeiture.
This construction of the acts of Congress which have been
referred to is, in the judgment of this Court, well warranted by
the words of those acts, as well as by the obvious policy which
dictated them. The expressions "all the goods of the said traders"
in the 2d section of the last act, although general enough if they
stood alone, unexplained by the context, to embrace all the goods
belonging to the trader wherever they might be found, are clearly
restrained by the provision which immediately precedes them, so as
to mean those goods only which might be found in company, though
not in contact with the interdicted article.
The notion that those goods alone are liable to seizure and
forfeiture amongst which the ardent spirits are found mingled can
receive no countenance from any fair construction of this section.
That which is contended for would enable the trader by the most
simple contrivance to protect the whole of his other goods from
forfeiture. To effect this, he would only have to keep the spirits
separate from his other goods during their transportation to and
after their arrival in the Indian country, so as not to contaminate
those goods by placing them in immediate contact with the offending
article. A construction which would sanction so glaring an evasion
of the whole policy of the law ought in no case to be adopted
unless the natural meaning of the words of the act requires it.
Even penal laws, which, it is said, should be strictly construed
ought not to be construed so strictly as to defeat the obvious
intention of the legislature. This was laid down as a rule by this
Court in the case of the
United States v.
Wiltberger, 5 Wheat. 56.
We are therefore of opinion that the instruction asked for by
the defendant's counsel was properly refused, and that that which
was given, so far as it has been examined, is unexceptionable.
The latter part of this instruction remains now to be
considered. After stating to the jury that if it should be of
Page 27 U. S. 368
opinion that the defendant, as an Indian trader, did carry
ardent spirits into the Indian country which were found with a part
of his goods therein with the purpose of being vended or
distributed amongst Indian tribes, all the goods of the said trader
designed for sale under his license and seized in the Indian
country were forfeited, the instruction proceeds as follows:
"and that the seizure thereof in a territory purchased by the
United States of the Indians but frequented and inhabited
exclusively by Indian tribes is legal."
We have found no little difficulty in understanding the real
meaning of the court from the language in which this latter
proposition is expressed, whether it was intended to state that
after the goods with the ardent spirits had been carried into the
Indian country with the unlawful purpose, they might be seized in a
country purchased of the Indians by the United States under the
circumstances referred to, or that being carried into this latter
district of country and there seized, such seizure would be
legal.
We rather incline to the opinion that the latter interpretation
was the one intended by the court and that that part of the
sentence was merely added as explanatory of the terms "Indian
country," which had previously been used. For if it was merely
meant to affirm that after the forfeiture had attached in the
Indian country, the goods might be seized anywhere out of that
country, no reason is perceived why the place of seizure should be
confined to a territory purchased by the United States of the
Indians and inhabited exclusively by them, rather than to a
territory not so purchased and inhabited. Besides, the proposition
asserted in the preceding part of the instruction, being that
ardent spirits carried into the Indian country with the unlawful
purpose and found with a part of the trader's goods and seized in
the Indian country, subjected all his goods found with spirits to
forfeiture, it would seem something like a contradiction to lay it
down as a distinct proposition that the seizure spoken of might be
made out of the Indian territory. As explanatory of the expressions
before noticed, it was entirely appropriate.
Page 27 U. S. 369
If we have rightly interpreted this part of the instruction, we
feel no hesitation in saying that we cannot accede to the
correctness of the instruction thus qualified, since it would
subject to seizure and forfeiture all the goods of the trader
carried into a country, not only belonging to the United States,
but lying without the boundaries of the Indian country, as they are
described by the 1st section of the act of 1802, to which all the
provisions contained in that act, and consequently those contained
in the emendatory act of 1822, are by that section expressly
confined. If the country referred to in this instruction was
purchased of the Indians subsequent to 30 March, 1802, so as that
the boundary line thereby became varied, then the above section
declares that all the provisions of that act shall be construed to
apply to the boundary line so to be varied in the same manner as
they apply by force of that act to the boundary line therein
recited.
If we misunderstand the meaning of this instruction, it is so
probable that it might have been misunderstood by the jury that
justice demands a retrial of the cause.
The judgment of the court below is to be reversed and the
cause remanded to that court with instruction to award a venire de
novo.
This cause came on to be heard on a transcript of the record
from the District Court of the United States for the District of
Indiana and was argued by counsel, on consideration whereof it is
considered, ordered, and adjudged by this Court that the judgment
of the said district court in this cause be and the same is hereby
reversed and annulled, and that the cause be and the same is hereby
remanded to the said district court with directions to award a
venire facias de novo.
