United States v. Crow.

once, and that was at an election, where he wrote some tickets. The letter in question has been permitted to go to the jury, and they are to decide whether it was written by the defendant. It is the duty and the province of the court, however, to state the law on this subject to the jury. Now, it is undoubtedly true that proof of handwriting is often a most reliable species of evidence, and is admissible as such both in civil and criminal cases. But to entitle it to any consideration, the witness who testifies to the handwriting of another must have had adequate means of becoming acquainted with it, and must be able to swear to it with some degree of positiveness. He must have seen the person write frequently, or must otherwise have obtained a satisfactory knowledge of the character of his writing. It is not enough that he has seen the person, as is the proof in this case, write but once, and then under circumstances showing that the attention of the witness was not specially directed to the peculiarities of the penmanship. It would be dangerous, in a criminal case, to rely on such vague and unsatisfactory evidence as the basis of a verdict which will subject the accused to severe punishment and operate as a perpetual brand of infamy on his character.

If the jury are of the opinion that the letter inclosing the draft addressed to Benedict was not written by the defendant, or that the evidence as to that fact leaves it in doubt whether he was the writer, they will inquire whether there are other facts in proof which satisfactorily establish his guilt. Apart from the alleged possession of the draft, there is no evidence that the defendant has been in possession of anything which was taken from the mail. It is stated by one witness, Mr. Faris, that some short time after the receipt of the proceeds of the draft the defendant requested him to change a $50 bank-note on the Merchants and Manufacturers' Bank of Wheeling. And this fact is relied on as sustaining the inference that this was one of the notes remitted by Benedict in the purchase of the draft sent to him by the person calling himself Martin Smith.

United States v. Crow.

There is no proof, however, identifying this as one of the notes sent by Benedict. It will, however, be for the jury to give such weight to this evidence as it may be fairly entitled to. If the note exchanged by Faris, at the request of the defendant, was one of the notes sent in Benedict's letter addressed to Smith, it would undoubtedly be a fact strongly implicating the defendant, and which, unexplained, would be sufficient to warrant the inference of his guilt.

As to the fifth count of the indictment, charging defendant with having unlawfully and fraudulently taken Benedict's letter addressed to Martin Smith from the postoffice at Beverly, to which it was directed, there seems to be no satisfactory evidence. Indeed, the only fact relied on to establish this charge is that before noticed, namely, that the defendant had the possession of a $50 Wheeling bank-note. For the reason already adverted to, the jury will no doubt hesitate in giving much weight to this fact.

The case is submitted to the jury, with the remark that it will be their duty to give the defendant the benefit of the evidence adduced by him to prove his previous good standing and character in the community in which he lived. Several respectable and intelligent witnesses have testified directly and positively to his good character, and their evidence on the point is not impeached or contradicted. It is also a fact brought to light by the evidence, that some months after this transaction, and when it was made known to the defendant that he was suspected of having stolen from the mail, though then in the distant State of Missouri, he immediately returned to his former residence in Ohio, and courted a full investigation of the charge. This, with the proof of his good character, is entitled to the consideration of the jury, unless the evidence of guilt is so clear as to leave no reasonable doubt in their minds.

The jury returned a verdict of not guilty.

Schenck v. Steamboat Fremont.

a

(DISTRICT COURT.)

ULYSSES P. SCHENCK ET AL. v. STEAMBOAT FREMONT.

In a suit for collision, to entitle the libellant to a decree for full damages for the injury, it must appear not only that the respondents' boat was in fault, but that the libellants' boat committed no error which contributed to the collision.

An up-going boat has a right to choose which side of the down boat she will take, and to signal accordingly, but has no right to insist on this rule when its observance will render a collision probable.

As a general rule, the proper place of a down boat is in the main channel. Where there is mutual fault, by the well-settled rule of maritime law, there must be a division of the damages; and such is the decree in this case.

Lincoln, Smith & Warnock, for libellants.

Fox & French, for respondents.

OPINION OF THE COURT:

The case set out in the libel is, substantially, that before daylight, in the morning of January 5, 1855, the steamer Switzerland, with a cargo on board, and a loaded barge in tow on the larboard side, was proceeding on a voyage from Cincinnati to New Orleans, and that a short distance above the town of Ghent, in Kentucky, and when near the Kentucky side of the river, the steamboat J. C. Fremont was seen to leave the wharf-boat at the town of Vevay, on the Indiana side, and soon after, instead of passing up near the shore of Vevay Island, crossed the river toward the Kentucky side, and in thus crossing, came in contact with the barge of the Switzerland, striking it on its starboard quarter, carrying away the forward part of its bow, causing it to take in water rapidly, injuring its lading, disabling it from proceeding, and thereby occasioning great injury to the libellants, in the expense incurred in repairs, damage to the cargo, and the

Schenck v. Steamboat Fremont.

detention of their boat. It is averred in the libel that the loss and injury thus sustained, was caused wholly by the fault, negligence, and want of skill of those in charge of the said steamer Fremont, and that no fault is imputable to those intrusted with the management of the Switzerland and the barge connected with it.

The respondents aver, in their answer, that the Fremont was proceeding from Louisville to Pittsburg; and, that having landed at the town of Vevay, for the transaction of its business there, started out from the whaf-boat of said town, and crossed the river, to near the Kentucky side, and then proceeded up the river, near the shore, the usual place of an ascending boat, at that stage of water; and that while thus going up, the Switzerland, with a barge in tow on the larboard side, was seen coming down on the larboard side of the Fremont, and continued that course till within one hundred and fifty yards of the said boat, when the Switzerland changed its direction toward the Kentucky shore, and thus proceeding, the barge struck the larboard bow of the Fremont, thereby breaking its planks, timbers, etc. The answer alleges that the collision took place about half a mile above said town of Ghent, the Fremont then being in the proper place of an ascending boat, and that it was due wholly to the improper navigation of the Switzerland, without any fault on the part of the said Fremont.

This brief statement of the material allegations of the libel and answer is sufficient to show the matter in controversy in this case. It also shows that the claims of these parties, as to the facts involved, are so directly in conflict that they can not be reconciled, and wholly exclude the supposition that both are consistent with truth; and, as is almost proverbially common in suits growing out of marine collisions, each party has been successful in sustaining by evidence the assumptions set up respectively in the pleadings. Thus the court is presented with a case, in which the evidence, as to the more essential facts, is palpably con

Schenck v. Steamboat Fremont.

tradictory and discrepant. Under such circumstances, the duty devolving on a court of fixing on a satisfactory basis for a decree is not always easy or pleasant.

It may be premised, that in the consideration of the facts of this case, the conclusion is readily reached that the collision in question could not possibly have occurred without fault of one or both of these boats. On whatever other ground it may be placed, it is certain it can not be attributed to inevitable or unavoidable accident. Indeed, it is hardly possible to conceive of circumstances in which a collision was less necessary, or less excusable. This conclusion fairly follows from facts not in controversy in the case. The libellants' boat, coming in at the head of Vevay Island, was distinctly seen by the pilot of the Fremont; and the latter boat was as distinctly seen by the pilot of the Switzerland, being then in the act of putting out from the wharf-boat, at Vevay. The boats were first mutually seen a little after five o'clock in the morning. The night had been light and fair, but it had become somewhat cloudy toward morning, still it was not so dark but that the boats could be easily seen. The distance between the points where the boats became mutually visible did not exceed two miles, and was probably not more than a mile and a half. An island, the lower end of which is nearly half a mile from the Vevay wharf-boat, stretches up close to the Indiana side of the river, and is something more than one mile in length. The shores, both on the island and the Kentucky side, are nearly straight, so that there is hardly any noticeable bend in the river, and nothing to intercept the view from the Vevay wharf-boat to the point where the Switzerland came in view, at the head of the island. About one-third the distance down, from the head of the island, the river is, by actual measurement, four hundred and fifteen yards in width, and gradually widens, till, at the lower end of the island, it is four hundred and ninety-two yards. At the time of this collision there was nine or ten feet water in the river; and from the Vevay wharf to the