UNITED STATES 11. HOBNER.
677
UNITED STATES 11. HORNER.
(District CcruTt, S. D. New York. January 28, 1891.)
L
CRIMINAL LAW-DISTRICT OJ!' TRIAL-REMOVA.L OJ!' PRISONER.
Upon an application under section 1014 of the United States Revised Statutes for the removal of a prisoner to another distlict, for trial upon an indictment there found, upon objection made, the court should look into the indictment, so far as to be satisfied that an offense against the United States is charged, and one that is triable in the jurisdiction to which it is sought to remove the prisoner. Upon the sct of September 19, 1890, amending section 8894, Rev. St., which makes criminal (1) depositing lottery matter in the mails j (3) knowingly causing such matter to be delivered maU,-an indictment having been found in the southern district of Illinois against the defendant containing five counts, the ·first four of which alleged such deposit by the defendant at New York, and the last that he, knowingly, caused such matter to be delivered, by mail, to a person in the southern district of lllinois, and that he had previously deposited such matter in the mails in NllW York, for such delivery, held, that the offense charged in the fifth count was not completed except upon the delivery of the prohibited matter in Illinois; that that offense was, therefore, consummated and "committed" there, though begun in New York, and was, therefore, an offense legally triable in lllinoisj and that the sixth amendment of the constitution, providing for the trial of offenses within the district where "committed," presented no objection to the removal of the prisoner.
S.
SAME-USE OJ!' MAILS J!'OR LOTTERIES-OJ!'J!'E:NSE BEGUN IN ONE DISTRICT A.:ND COMPLETED IN ANOTHER.
Indictment for Violation of Postal Laws. Edward Mitchell, U. 1:5. Atty., and Maxwell Evarts, Asst. U. S. Atty. Alfred Taylor and Hernana Aaron, for defendant. BROWN, J. The defendant having been arrested in this city, and held by a United States Commissioner, upon a charge of violating the statutes forbidding the use of the mails in the lottery business, tion is made to me under section 1014 of the Revised Statutes for his removal to the southern district of Illinois for trial under the indictment there found against him for such offenses. Objection to his removal is made on the ground that no offense is charged in the indictment, or, if any, none that is legally triable in that state; that, if any offense is charged in the indictment, it is an offense consisting wholly of acts committed in the state of New York, and cannot, therefore, under the sixth amendment of the United States constitution, be tried in the state of illinois, but only in the district wherein the offense was committed. I have no doubt that upon such objections it is not only the right but the duty of the court, before the removal of the accused to a distant forum for trial, to look into the indictment so far as to be satisfied that an offense against the United States is charged, and that it is such an offense as may be lawfully tried in the forum to which it is claimed the accused should be removed. In re Dana, 7 Ben. 1; In re Buell, 3 Dill. 116, 120. On examining the indictment, it is apparent that each of the five counts charges an offense against the United States, in at least general terms. Any defects of form, or objections that might be raised on special demurrer, are not proper to be considered here. All the counts are founded upon the act of congress approved September 19, 1890, which amends Section 3894 of the United States Revised Statutes so as to pro·
hibit the carrying or delivery, by mail, of any "letter, postal-card, or circular, concerning any 10tterJ, * * * or list of the drawings of any lottery," and then says: I co Any person who shall knowingly deposit or cause' to be deposited, or who shall knowingly selld or cause to be sent, anything to be conveJ'ed or erect bv, mail in violation of. this section, or who shall knowingly cauSe to be d,EiIiv eFed1;>y mail anythi ng here.in forllidden to he carried by mail, shall be deemed'guuty of a misdemeanor, and on conviction' shall be punished by a fine of not more than five hundred dollars, or by impl'isonrnent for not more than oueyear, or by both SUch fine arid imprisonment, for eRch offense. Any pertiotiviolating any of the provisions of this section may be proceeded l1gainst by inforJnation or indictment, and tried and punished, either ill the district at which the unlawful puhl!cation was mailed or to which it is carried by mail for de!iveryaccording to the direction thereon, or at which it is caused to be deHverad by mail to the person to whom it is addressed." , This last provision is not enforceable any further than is compatible with the sixth amendme.nt to the United States constitution, which secures to the accused the. right to trial in that district only wherein the offense was committed. Three somewhat different offenses are created by the section above quoted: (1) Knowingly depositing, or causing to be deposited, such forbidden matter in the mails; (2) sending such matter or causing it to be sent by mail; (3) knowingly causing such matter to be delivered by mail. All the counts, I think, describe the matter mailed sufficiently for the purposes of this application, as prohibited matter within the statute. The first four counts are based entirely upon the first Qf the above. three offenses, viz., knowingly" depositing or causing to be deposited" such prohibited matter in the mails at New York. The fifth and last count charges the third offense, viz., that. within the said southern district of Illinois, the defendant on the of December, 1890, unlawfully did, knowingly ,"cause to he delivererl by mail" to the person therein named at Belleville, Ill.. a prohibited circular, describing it, which it is alleged the defendauton December 29, 1890, did. knowingly ,deposit lind cause to La deposited in the New York post-office, addressed to her as above stated, and which circular was then and there carried by mail for .delivery to her. The first and second offenses do not require for their completion that the matter deposited in the mails for trailsmission should be, in fact, transmittedor delivered. All that is required to constitute those offenses is that the prohibited matter should be" knowingly deposited,'" or "caused to be deposited" in the mails, or" knowingly sent or caused to' be sent " to the mails, for,thepurpose of transmission. And if those offenses'are completed at the place where the prohibited matter is deposited or sent for deposit, in the mails; whether the matter be. transmitted or not; it may be that, under the cl.>llstitutional provil>ion invoked, no trial for those particular offenses could be had in any other'district. It is not necessary, however, to consider further those two clauses of the statute. or the first four counts of the indictment; forI have no doubt that the last count charges an offense which is not, and cannot be, completed without the delivery of,tpematter hymail to the person to whom it is addressed. This offense
UNITED STATES V. HORNER.
679
consists, under the third clause of the act, in "knowingly causing such prohibited matter to be delivered by maiL" It is competent for the lawmaking power to protect the citizen from the demoralizing or corrupting influence of printed or written matter circulated through themails.by making criminal any such intentional delivery. That is precisely ultimate object of the act in question; just as the ultimate object of the punishment for murder is the protection of human life. In cases of murder,. it is well settled that a person who, within one territorial jurisdiction, commits murder upon a person within another territorial jurisa pistol ball the boundary line diction. as,for instance, by between two states, may be tried and convicted in the jurisdiction where the crimeiscpmpleted by the death of the victim. The voluntary act' of firing is in one jurisdiction; it takes effect· in another. Without death there is po murder. The crime is consqmmated in the jurisdiction where the death oc<mrs,'and is consequently "committed" there, and may be tried there, although it may also be tried at the place of shooting·. Rev. St. § 731. So under the last count in the present case, though the voluntary act began in New York by deposit in the mails, the third offense, viz.· "causing the delivery by mail." 'Could not be consummnted except by delivery to the person and at the place intended. In whatever, wa,y the accused may have caused such delivery to be made, whether by deYork, or elsewhere, and wherever his volunta:ry posit in the mails in act mayha'e begun, this third offense is not "committed " until the de'livery by mail is made. And when such delivery is made, the offense is committed, and committtedat the place where the delivery is made' in accordanoewith the intentof,the accused, and by his rrocurement;/ though it may perhaps also be deemed committed at the place of deposit.' The offense stated in the last count is therefore triable in Illinois, under, the provisions of the United States constitution, as well as of sections 731: and 3894 of the Revised Statutes as amended. In re Palliser, 136 U. S,; 257, 10 Sup. 1034. Ilowe\?er inconvenient it may be to the accused to be removed toa distant tribunal for trial, one who voluntarily use of the long arm of the United States mails to inflict an injury at a distant place, has no just reason to complain of being held to answer within the jurisdiction that he has chosen as his field of operations. . The order for removal is granted.
:
t'
680
FEDERAL REPORTER,
vol. 44.
POTTS
et al.
tl. CREAGER
et ale
(Circuit Court, S. D. Ohio, W. D. January 3, 1891.) 1. PATENTS FOR INVENTIONS-CLAY SEPARATOR-INVENTION.
Letters patent No. 322,393, issued July 14,1885, to C. & A. Potts for improvements in disintegrating clay, consisting of the combination with a revolving cylinder of steel bars, fitted into longitudinal grooves in its periphery, so adjusted as to sent sharp corners projectinl' above the surface of the cylinder, and a strong plate mounted on a shaf,t, so as to swing in bearings on the frame, and alternately ap. proach and recede from the cylinder, are void for want of invention, all the elements of the device being old, and their combination being merely the exercise of mechanical skill. Letters patent No. 368,898, issued August 23,1887, to C. & A. Potts for improvements ill disintegrating clay, consisting in the combination, with a rotating cylinder longitudinally grooved, and carrying cutting bars projecting beyond the grooves, of a smooth-faced rotating cylinder, adapted to carry the clay and hold it against the grOllved cylinder, are void for want of invention, all the elements of the device being old, and their combination being merely an exercise of mechanicalskill.
In Equity. O. &: E. W. Bradford, for complainants. Jas. Moore, for respondents. SAGE, J. This suit is for the infringement of claim 6 of patent No. 322,393, July 14, 1885, and claims 1 and 2 of patent N9. 368,898, August 23, 1887, both issued to C. & A. Potts for improvements in disintegrating clay. The purpose of these improvements is to disintegrate clay by means of a revolving cylinder, against which the clay is automatically pressed, as hereinafter described. 'l'he machine consists of a cylinder mounted on a shaft, having suitable bearings on the frame which supports it, the cylinder being of such length as to nearly fill the space between the sides of the frame. A series of steel bars is fitted into longitudinal grooves in the periphery of the cylinder, where they are held by flush screws at each end, or other suitable means, that they may be so adjusted to present a sharp corner projecting above the surface of the cylinder. Opposite the cylinder a strong plate is mounted on the shaft, so as to swing in bearings on the frame. The central part of this plate is cylindrical in outline, the upper portion presenting a straight surface and the lower portion presenting to the cylindE:r a curved surface, corresponding to the perivhery of the cylinder. This plate is caused to oscillate in its bearings by means of an eccentric wheel. The opposed sides of the cylinder and the upper and central portions of the plate form, together with sheet-metal end-plates which are secured to the frame, a trough, one side of which approaches and recedes from the other at intervals, and which haR at the bottom a narrow opening of constant width. The operation of the machine is as follows: The upper end of the plate being swung back to the position furthest from the cylinder, the moist, untempered clay is thrown into the trough above mentioned. The cylinder revolving rapidly, successive portions are
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