143 U.S. 570 (1892), Horner v. U.s.

Citation:143 U.S. 570, 12 S.Ct. 522, 36 L.Ed. 266
Party Name:HORNER v. UNITED STATES et al.
Case Date:March 07, 1892
Court:United States Supreme Court
 
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Page 570

143 U.S. 570 (1892)

12 S.Ct. 522, 36 L.Ed. 266

HORNER

v.

UNITED STATES et al.

United States Supreme Court.

March 7, 1892

Appeal from the circuit court of the United States for the southern district of New York.

Habeas corpus by Edward H. Horner. From an order dismissing the writ and remanding accused he appealed to this court. Affirmed.

COUNSEL

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[12 S.Ct. 522] Alfred Taylor and Herman Aaron, for appellant.

Sol. Gen. Taft, for appellees.

OPINION

Mr. Justice BLATCHFORD delivered the opinion of the court.

On the 10th of August, 1891, a post-office inspector of the United States made complaint on oath before John A. Shields, a United States commissioner for the southern district of New York, that on the 29th of December, 1890, Edward H. Horner, of New York city, unlawfully deposited, and caused to be deposited, in the post-office at that city, in the state of New York, and in the southern district of New York, a certain circular, to be conveyed and delivered by mail, which in the contents thereof, thereafter set forth in the complaint, concerned a lottery, and which was then and there addressed to Joseph Ehrman, 70 Dearborn street, Chicago, Ill., and was inclosed in an envelope, with postage thereon prepaid, and carried by mail, and that the circular contained, among other things, what is set forth in the margin; [1] the further contents of the complaint being also set forth therewith.

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On the same day the commissioner issued [12 S.Ct. 523] a warrant to the marshal, commanding him to arrest Horner, and bring him before the commissioner. This was done, and Horner demanded an examination on the charge, which was had and completed; and the commissioner then certified that it appeared to him, from the testimony offered, that there was probable cause to believe Horner guilty of the offense charged in the warrant, and he committed Horner to the custody of the marshal, in default of $5,000 bail, to await the action of the grand jury. By consent, Horner was then discharged, on his own recognizance, until a day named, for the purpose of giving bail, and was subsequently discharged on bail, to await trial.

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On the 17th of November, 1891, Horner was surrendered by his surety, and was committed by the commissioner, in

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default of $5,000 bail, to the custody of the marshal on the warrant, to await the action of the grand jury. On the same

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day, on the petition of Horner, presented to the circuit court of the United States for the southern district of New York, an order was made by that court that writs of habeas corpus and certiorari issue to the marshal and the commissioner, returnable on that day. Returns were made to the writs, and on the same day, after counsel were heard, the court, held by Judge WHEELER, made an order dismissing the writ of habeas corpus, and remanding Horner to the custody of the marshal. Horner thereupon took an appeal to this court, on November 17, 1891, and was discharged on bail, to abide the further action of the circuit court on the mandate of this court.

The complaint in this case is founded on section 3894 of the Revised Statutes of the United States, as amended by the act of September 19, 1890, chapter 908, (26 St. p. 465,) which reads as follows: 'No letter, postal-card, or circular concerning [12 S.Ct. 524] any lottery, so-called 'gift concert,' or other similar enterprise offering prizes dependent upon lot or chance, or concerning schemes devised for the purpose of obtaining money or property under false pretenses, and no list of the drawings at any lottery or similar scheme, and no lottery ticket, or part thereof, and no check, draft, bill, money, postal-note, or money order for the purchase of any ticket, tickets, or part thereof, or of any share or any chance in any such lottery or gift enterprise, shall be carried in the mail, or delivered at or through any post-office or branch thereof, or by any letter-carrier; nor shall any newspaper, circular, pamphlet, or publication of any kind containing any advertisement of any lottery or gift enterprise of any kind offering prizes dependent upon lot or chance, or containing any list of prizes awarded at the drawings of any such lottery or gift enterprise, whether said list is of any part or of all of the drawing, be carried in the mail, or delivered by any postmaster or letter-carrier. Any person who shall knowingly deposit or cause to be deposited, or who shall knowingly send or cause to be sent, anything to be conveyed or delivered by mail in violation of this section, or who shall knowingly cause to be delivered by mail anything herein forbidden to be carried by amil, shall be deemed guilty of a misdemeanor, and on conviction shall be punished by a fine of not more than five

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hundred dollars, or by imprisonment for not more than one year, or by both such fine and imprisonment, for each...

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