Upon the case as made out by the government, in the absence of any rebutting evidence, no court or jury, we think, could hesitate in finding that Downey had been guilty of aiding in the fraudulent introduction of the cigars without payment of duty. The case as thus made amounts to some thing more than the probable cause, which, by section seventy-one of the act of 1799, throws the onus probandi on the claimant of the vessel. It is a clear prim a facie case, and both by the statutes and the ordinary rules of evidence required of the claimant such testimony as should satistactorily rebut the presumption of guilt which it raised.
The principal reliance of the claimants for this is upon the testimony of Downey, who attempts to explain his letter, and upon an effort to impeach the character of Albren for veracity. But the whole of his explanation and account of the letter and its purpose is vague, unreasonable, and altogether unsupported by any other testimony, or by reference to anything which would confirm it. While every word and line of the letter is in exact harmony with Albren's account of the transaction, and must be regarded as decisive as to the relative credibility of the two stories told by the witnesses.
In reference to the receipt of the money also, while Downey flatly denies it, and thus is in direct conflict with Albren, the latter is supported by Morlina, who tells a consistent story, and whose veracity is unimpeached.
It is not unimportant in this connection to consider also that Downey swears under the influence of being owner to the extent of one-fourth of the vessel, and that the charge against which he testifies is an implication of bad faith in him towards the other joint owners, and a fraud and a crime against the government, for which, if guilty, he is liable to severe punishment.
The attempt to impeach Albren's character rests on the testimony of four witnesses. Two of these were parties to judicial proceedings alleging against them similar acts of fraud on the revenue, and Albren had been, or was expected to be, a witness against them. On the other hand, several witnesses are called who testify to his general good character for truth and veracity. In this respect we do not think he has been successfully impeached.
As to the statement introduced in evidence, as taken down in the office of the claimants' attorney, purporting to be made by Albren, though not signed or sworn to, it seems to us that his own account of it is probably correct, namely, that it was an attempt to commit him before the trial to a statement which would exonerate Captain Downey, and that the offered bribe failed, probably because neither party would trust the other by signing the paper or paying down the money first.
We think that a case is made out against the vessel, and that the decree of the Circuit Court must be REVERSED, and a judgment rendered in favor of the United States in that court.
DECREE ACCORDINGLY.
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This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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