UNITED STATES V. DUFF.
UNITED STA.'l'ES V.
(Circuit Oourt, S. D. New YQ1'k. January 24, 1881.)
PRACTICE-NoTICE TO PRODUCE LETTER.
Notice to produce an original letter was served upon the defend. ant's attorney on the afternoon of the day before the trial, at 20 min· utes before 5 o'clock. Held, where the defendant's attorney had his office in the same town, and near the place of trial, that the notice was sufficient.
The notice described the letter as enclosed in an envelope. Held, that the notice sufficiently indicated an intention to call for both the envelope and its enclosure.
LoTTERY CIRCULAR-DEPOSIT IN MArr.--EVIDENCE.
Upon the trial of defendant for having deposited a lottery circular in the mail, in reply to a letter addressed to John Duff & Co., it was proved (1) that defendant was accustomed to use the name of John Duff & Co" and sold lottery tickets under that name; (2) that defendant personally received the letter which contained the order for the circular in question, al1d also money to pay for two lottery tickets; and (3) that the circular was addressed to a fictitious name, known only to the defendant and the sender of the order. Held, under these facts, that it was competent for the jury to infer that the defendant deposited the circular.
4. TO FICTITIOUS NAME-REv. ST. § 3893.
A letter containing a lottery 9ircular, addressed to a fictitious name", was deposited in the mail. 'Held, that such letter was within the scope of section 3893 of the Revised Statutes, relating'to the mailing of letters or circulars concerning
fI, SAME-DELIVERY TO FEDERAL OFFICER.
Held,further, that it did not make any difference in the act done by the defendant that the person to whom the letter was delivered was an officer of the United States.' '
06. SAME-JunOit-TALK ABoUT LOTTERY BUSINESS.
A juror who sat upon the trial of the defendant heard some general talk in corridor of the court-house, before he was empanelled, about the wickedness of those engaged in the lottery busifiess. Held, upon motion for a new trial, that he was not thereby disqualified.
The occupation of a person may· always be shown as bearing upon , the question of his credibility as a witness.-[ED.
Indictment. Motion for New Trial. BENEDICT, D. J. The defendant was tried and convicted of having deposited in the mail a lottery circular. He now
moves for a new trial. One ground of the motion is that error was committed;a.t' trIal in admitting secondary evidence of the contents of a letter sent to the accused, without proof of sdfficient noHce to produce the original. The case shows that the place of business of the accused was in Nassau street, near the place of trial. It was proved that notice to proance the original letter was served upon the defendant's attorney on the afternoon of the day before the trial, at 20 minutes before 5 o'clock. The original not being produced, secondary evidence of its contents was admitted. In this there was no error. "In town cases service of notice on the attorney on the evening befot,e the trial is in general sufficient." 2' Russ. on Crimes, 743. Another ground of the motion is that secondary evidence was permitted to be' given of the address upon the envelope of the letter sent to the defenda.nt, when the notice to produce did not specify the en.velope. But the notice to produce de. gcribed the letter its' enclosed in an envelope, and, we think, sufficiently indicated an ,intention to call for both the envel. ope and its enclosure. 'We also think that a notice to produce a letter covers the envelope of the letter. It is further contended that the evidence was not sufficient to warrant the jury..infinding that the defendant deposited the lottery circular, because the circular in question was sent in reply to a letter addressed to John Duff & Co., and there was no direct evidence that the dMendant mailed it. But it was proved 'that. was accustomed to use the name of John Duff &.00., and sold lottery tickets under that name. It was also proved that the defendant the letter which contained the order for personally tlie ,in' question', also money to pay for two lot· tery tickets. From these .facts it was competent for the jury . to infer that the defendant, who received the order for the circular and the pay.for the "tickets, was the person who reo mitted the circular and tickets, especially when it appeared that the circular and tickeis were ltddr6ssed to a fictiti9uB name" known, so far ,asappenl's,; only to the defendant aUll the sender of thEl order..
STA'fES V.' DUFJr.
It is further contended that error was .committed in refusing to direct an acquittal, when requested so to do,. upon the ground that the letter containing the circular in questionw,a,s incapable of delivery, being addressed to a fictitious name, and therefore was not within the scope of the statute creating the offence. But letters.addressed to fictitious names are Dot incapable of delivery, as thiscaae shows. Moreover, the: statute says nothing about deli"ery. It deals with mailing' and sending to be mailed, .' The words are: "No letter or circular concerning lotteries · · · shall be cartied in the mail. Any person who shall' knowingly deposit or send anything to be conveyed by mail in violation of this section. shall be punished," etc. The case shows that a .letter containing a circular concerning a. lottery was deposited in the mail. The jury found that the defendant deposited the let· ter with intent to have itconveyed,by mail. The .finding was justified by the eviden.ce, a.nd it:br?ught the defendant within the scope of the statute.'> '.Jihe lette!.: WaB. none the less a letter deposited in the mail·forj thei,purpose' of being conveyed by mail, because at the place to which it was can. veyed it was delivered to a person who. was corresponding under a fictitious name. Nor does it, ma;keany difference' in tije act done by the defendanqha.t the person to whom the letter was delivered was·anbfficer .of the United Stp.tes. Thef refusal to direct an acquittal was therefore carrect. '. The remainder of the questions presented arose in the COUXSElI of empanelling the jury. BefQl'e, the jury was sworn the defendant moved to quash the 1?anel, and, in support of. the motion, read an affidavit. showing that Anthony LdJoinsto.ck, who was to be a witness against him, had conversed, with of the jurymen on the panel about lottery prosecutions, ani the evidence gathered by him and in his possession, what he expected to do in the future iandthat three of the jurymen drawn heard the conversation, or. portions' thereof. The motion was denied. At the 'most, the illQtion lent to a challenge to the array·. Manifestly, the:faGt&shown. afford no support to a challenge to the a1'llay: The motimi to quash the panel was therefore properly .
The defendant then challenged one of the jurors for favor, and p:ropounded the following questions: Question. "If, on the trial of this case, it becomes a question as to who should be believed, Anthony Comstock or the defendant, the defendant being proved to be in the lottery business, would you give less credit to the defendant's testimony because he is proved to be in the lottery business ?" Qttestion." Would you give less credit to the testimony of anyone proved to be in the lottery business than you would give to persons not in that business?" Both questions were rejected. These questions involved the same proposition, i. e., that the fact that a person is engaged in an illegal calling must not be permitted to affect his credibility as a witness-a proposition clearly untenable. The occupation of Ii, person may always be shown as bearing upon his credibility; A person is not shown to be incompetent to sit as a juror upon the trial of a thief by shomng that he would give less credit to a thief than to one engaged in an honest calling. It was next shown in support of the challenge that the juror had heard Comstock talking to a number of persons in the corridor before the trial about the wickedness of the men in the lottery business and the injury that business was doing, and that he had certain pro'ofs against the lottery men; but nothing was said about the defendant's case. The talk was general about lottery men and the lottery business. The remarks here alluded to were not made in the presence of any person at the time sworn upon the jury in the defendant's case, and it cannot be held that the fact of having heard, before he was empanelled, general talk about the wickedness of those engaged in an illegal occupation disqualifies a person from sitting as juror upon the trial of one engaged in such occupation who is charged with crime. , The case, as presented in the record before us, shows a further ruling upon the challenge of the juror Perkins, to sUPBort which' no effort is made, and which is so palpably erroneous as to give rise to the supposition that its presence the record may be attributed to an error in making up the case. As the record stands, the ruling alluded to entitleli
the defendant to a new trial, as a matter of course. Leave is, however, given to apply to the judge who presided at the trial for a. correction of the record. If no correction of the record be made, an order· will be entered directing a new trial. If the record be amended, the effect of the amendment will be the subject of. further consideration.
CONWAY and another, impleaded, etc.
(Circuit Oourt, S. D. New York. January 24, 1881.)
1. MARSHAL ..... OBSTRUCTION IN PERFORMANCE OF DUTY - ARREST BY MEMBJIlRS OF MUNICIPAL POLICE-"REv. § 5522, S. having attempted to vote in the presence of a deputy marshal,
under circUIDstartces sufficient to justify the belief that he was not entitled to vote, was arrested by the latter. The escape of the prisoner having beert subsequently effected through the intervention of a crowd which surrounded the marshal, and the latter having been forcibly deprived of his cane, drew a pistol, when he was at once arrested by certain members of the municipal police. Held, that such arrest was an obstruction of the marshal in the peformance of his duty, within the meaning of section 5522 of the Revised Statutes.-
Indictment. Motion for New Trial. BENEDICT, D. J. The defendants were indicted under section 5522 of the Revised Statutes of the United States, for obstructing a marshal of the United States in the performance of his duty. The fac,ts appearing in the case areas follows: One Faser was a deputy marshal, duly appointed and assigned to duty at a polling place in the seventh election district of the seventeenth assembly district of the city 'of New York on the last election day. On that Bay a man named Shafer attempted to vote at such polling place under circum-. stances sufficient to justify the belief that he was not entitled to vote. The attempt was made in presence of the marshal and of a supervisor of election, who directed that Shafer be arrested.. Thereupon Faser arrested Shafer for a violation of the laws of the United States, committed in his presence. v.6,no.1-4