lJNITED STATES 11. LAW.
eVidence of any other change of legislative purpose so far as relates to printed books. By a literal construction of the present statute the petitioner's books seem entitled to free entry, because, having once been bound more than 20 years before importation, they comply with its precise terms, they may have been bound again. But it is not necessary to rely on the mere letter, as the considerations stated lead directly and naturally to a rational construction. Church of Holy Trinity v. U.S., 143U.S. 457,463,12 Sup. Ct. Rep. 511. Moreover, rebinding is no,t binding. The latter is, new and original work; while, ordinarily, the former is repairing, and usually omits one or nlore of the recognized steps in the latter. Hthe Un*d States claims that they all actually entered into the present case, it had the burden of showing this fact to the board of general appraisers. But, as it is apparent that these books were bound more than 20 years before importation as books of like character are usually bound belore being offered for sale, I would reg:trd them as entitled to free entry, even though it also appearl'd that, in consequence of accident or ordinary use, they had needed and received repairs in all respects equal in extent to new and original binding. I adopt the conclusions Mthe decision of the treasury department of March 2, 1891, (10,800)and hold thnt the books are entitled to free entry. The petitioner will prepare the proper order, and, if not agreed to, will submit it to the court for revision. For the presf'nt the, order will be: Peti· tioner entitled to relief per order to be entered in COWlllilWC8 with the opinion 01 the court.
UNITED STATES tJ. LAw.
(DlItrict Court, W. D. Virl1inia. Aprll U, 189'J.)
In lUI IndlctInen\ Ifor perjury, the day on which the perjury was oommfttPl'l mutt be truly laid, and to lay It. on t.ne " - - day of Sept.ember, 18111," ill lnautllcient.
9. S..... _AFPlJ>AVIT. . In an Indictment for perjury, In making an aftldavU., it S. unnecesBal'J, UDder Rev. St. 5 5300, to 'set out. the affidavit in I/ABC verlJu.
S. &1IE-AFl'IJ>AVIT,-AuTBORITT OF NOTARY.
Rev. 8t..S 1778,aulhorizlng notal"ies public to admlnllter oaths In all callell In which jnstlcell oftbe peace bave power to admlniM.er them. lOvell no power to administer an oath in an investigation by the post otllce department as to the alleged loss of a lett.er, for there ill no stutut.e giving justices such power, and hence no indictment. for perjury can be based upon faille at.at.ement.s in an a.fll. elavit. made before a: notary in auch an Investigat.ion.
,At Law. Indictment of A. B. Law tOr perjury_ ,dictment ,'sustained. W. E. Oraig,U.S. Atty. Geo. a. Cabell, for
'£his is, an intlil'tmpnt for perjury., "aBed. on b,)'the ,jefeu9autonthu2bt. day of AugUlit.t
beforeW. D.' HayneS;;ft notary public for Franklin county., in the state of' Virginia, said being to the following effect, to wit:
"state of Vil'ginta, County of Fmnklin:-ta wit: "Before me, W. D. Haynes, a ,notary public in' and 'for Franklin county, Virginia, personally appeared A.B. Law, and made oath that he registered a letter at Pen Hook, Va"on the 21st August, 1891, directed to G. R. T. Greer, Rocky Mount, Va., and that said letter contained eight hundred dolJars in United States currency, as follows: three two hundred dollar notes, two fifty dollar notes, and five twenty dollar notes. A. B. LAW. "Sworn to and subscribed before me this 28th day of September, 1891.
"w. D. HAYNES, N. P."
The defendant demurs. to the indictment on the following grounds: Tqat the day of the alleged of the offense is left blank in the indictment, the time. beh;lg "the - - - day of that this objection to the September, 189L" The.coux;t is of indictment is well taken·..The down in Rhodes "'. Com., 78 692, is, that "iD; .li1n jl1dictment for ,perjury the day ip which the cOQ:)mittedIAHstbe truly laid,", and this decision is susby the various autlJ.Q#ties cited by counsel for def'endant. , second objection to the in,dictment urged by counsel for the is that should set out in hlec verba the affi,dlj.yit the charge of perjuryis basl)d. This,the maqle by the defendll,nt on c9nr,t is unneuessa;ry. Sectiqn. 5396 of the Revised of the United States provides as follows: "Sec. :;396. In every presentment or indictment prosecuted against any person for perjury it shall be sufficient to setfOl'th the substance of the offense charged upon the defendant, arid by what coui't, and before whom the oath was taken, averring such court or person to have competent anthority to administer the same, the proper to falsify the matter wherein the perjury is setting forth the bill, answer, information, indijlt.ment, or any part of or proceeding, either in law or'equity, depofHtiori,or certificate, other than as hereinbefore stated, and without setting fortbtbl'lcommission or 'of thec6ullt'or'person before whom the perjury
irnp,ortantobjection raised on the demurrer is that the 'notary' publld"before tJie affidavit on wh,i¢b 'the indictmellt is based was. taken had no authority to administer the .oath to the dewhi?h, it i,n the indictment" w8sfrosely made"'and lD makmg whiCh the defendant COUl.No.pnneiple in the criminal is more clearly settled than that the false oath must be taken before a court,ollan officer authorized to administer such oath. The most general power conthe United States on a: lllotary public to'administer an oath is given by section 1778 of the Revised Stll:tutes, wblch authorizes this officer to administer aIr dath ;IU all cases in wMch, under the laws of the United States, a'juBtic6 oflhepeaoo rIlaydd' so. Thrstatute iJlas fQllows: . . . . ' .'.< (', wil'icb, under 'the t,heUpited 'olithfl oHielHt()w!edsments-maY' now be taken'ormad&.'bef'ore any' justice ot
'UNITEP STATES V. LAW. .
the peace of any etate or territory, or in the District of Columbia, they may hereafter be also taken or. made by or before any notary public duly appointed in any state, district, or territory, or any of the commissioners of the circuit courts, and, when certified under the hand and otlicial seal of such notary or commissioner, shall have the same force and effect as if taken or made hy or before such justice of the peace."
This statute limits the authority of a notary public to administer an oath to the cases in which a justice of the peace has the same authority. A diligent and careful examination of the statutes of the United States, and the rules and regulations of the post office department, which by statute have the efI'ect of law, (and he can derive his power from no other source,) failsto furnish us any authority for a justice of the peace to administer such an oath as that taken by the defendant in this case. We must therefore necessarily arrive at the conclusion that the notary public had no authority to take the affidavit in ques. tion, and that if it be false it cannot be the ground of a prosecution for perjury. The court thinks that even if the' notary public had authority to take the affidavit on which this indictment, is based, the said affidavit would be defective, because not certified under the hand and official seal of the nbtary public, as required by the The view taken by the court that a notary public bas nQ authority to ad" minister an oath in an investigation as to the alleged 10s8 of a registered letter, such as was being conducted in the matter of the case at bar, been held .by the post office department. :E'or in the seems to postal laws and regulations (section 48) it has notified its officers and employes that, in accordance with 'the provisions of, section 183 of the Revised Statutes of the United States, "any officer or clerk of any of the departments lawfuny detailed to investigate frauds or atterrtpts to defraud on the government, or any irregularity or'misconduct of any officer or agent of the United States, shall have authority toadrhinister an oath to any· witness attending to testify or depose in the course ,of The same section of the postal laws and regula" such tions reiterates the provisions of section 298 of the Revised Statutes of of the peace, or the United States t that" apy mayor' of a city, judge of· any court of record in the United. States, may administer oaths in relation to the examination and settlement of accounts com" mitted to the charge of the sixth auditor," but confers no power toad· minister an oath in case of ,an investigation such as was being COD" ducted when the affidavit in question was taken. The post office spector, if there was one present, dOUbtless had this poWer, but the notary had not. The demurrer must be. sustained.
.'(Ptstrlct Oourt, lV.I). Virgtnia. April 18;1892.)
INDICTMENT-VALIDITy-PRYOR REFUSAL TO INDICT.
The fact theta grand jury has ignored an indictment bnot a bar to the subsequent Qf a true. bipfor the same offense.
Under Rev.St. § 8$98,88 amended by Aot Cong.l888,25 St. p. 496, an obscene letter. sealed. or unsealed,is. nOllmailable, the provision that no person shall open sealed matter not addressed to himself bein¥' a suffioient proteotion to private correspondenoe. Inre WllhiLl, 42 Fed. Rep. 822. Iollowed. A·letter from a man ,to, an unmarried woman. proposing a olandestine trip to a neighbOring returri'tbe next mornhlll', be to pay ber expenses and five dol· .Jar. QQllildes· .is obscene letter within the meaning of the aot making such matter . llonll\aiJab1e, altbough .no words whioh are of themselves obscene. ;" Obscene," within the lIl8Bning of the act, is that whioh is oJrensive to chastity U.S. v. ,Elarmpn,.45 Fed. Rep. 414, followed.
LE:rTBB, J;>E'INED. ,
.A.t'LaW. IndictOlent-0fGeorge W. Martin for Olailingobsceneletters inviolapon()f Rev. St.,§S893. Heard ou OlotiQu to quash and demurrer. .Overruled. '. o. ' V.S, Atty·. , ParriB, ford,efendant.
PAUL, .,Ill this case the defendnnt moves toqu8sh the indh:tmeqt,ontlle .groundtijat'it was found by a grand jury of this court at a grand jury .of this court at 8 court lU 1891, had rl'ported the indictment "npt held at a true I ,flo. not this motion can be sustained either by the 9r,.bytlll3.doctrine generally held by the Amer'the doctrint;l in this state and the olher American states is ican that the, 19I,loringof aniij<jictment by one grand jury is no bar to asubsequelll the charge ami finding au fo,r tbe ,"It. .Ulan be committed for a crime, no bill \:Ie Hit be thrown 'out by the grand jury, so bYp,roclamation,. he is still liable to be ipdicted, that he though . up a. !3econd bill, after anignoram1t8, is an extreme act of prerogaotive, subjecttq the revision of the court. * * *" Whart. Crim.PI. § 446.. The, defendant also demurs to the indictment on the grounds: ,. Pir8t, that the sending of an obscene, lewd, and JnsciHous letter Ut1Qeuefll through the mail, is nol anofJEmseunder section 3893 of the' Revised Statutes of the United States. as amended by the act of approved September 26, 1888, under which the indictment in this case was drawn; 8econd, that the le:tters on which this indictment is based are not obscene, lewd, and lasc'ivious within the meaning of the statute. The court will consider these objections in the order in which they are made. Prior to the enactment by congress (September 26, 1888) of the amended act on this I:lul>ject, the word" letter" was not embraced