Ex parte Irvine

• Decision Date: 07 April 1896
• Citation: 74 F. 954
• Parties: Ex parte IRVINE. Ex parte WAGNER.
• Court: U.S. District Court — Southern District of Ohio

74 F. 954

Ex parte IRVINE. Ex parte WAGNER.

United States Circuit Court, S.D. Ohio, Western Division.

April 7, 1896

The petitioners, R. W. Irvine and J. C. Wagner, were committed to the county jail of Warren county by order of the circuit court of the United States for the Southern district of Ohio Western division, for contempt in refusing to answer certain questions propounded to them when called and sworn as witnesses for the United States in the trial of an indictment against 12 defendants for conspiracy to commit an offense against the United States. The offense which the defendants were charged with conspiring to commit against the United States was a violation of the act of March 2, 1895, for the suppression of lottery traffic through interstate commerce. The first section of the act provides that any person who shall cause to be carried from one state to another in the United States any papers, certificates, or instruments purporting to be ore represent a ticket, chance, share, or interest in or dependent upon the event of a lottery offering prizes upon lot or chance, shall be punishable, for the first offense, by imprisonment for not more than two years, or by a fine of not more than $1,000, or both, and for the second and after offenses by such imprisonment only. The indictment is against Albert L. France, Benjamin Hollen George Williams, Nat Hyams, George Bickle, and seven others charging them with conspiracy to commit the offense against the United States of causing to be carried from Covington Ky., to Cincinnati, Ohio, papers, certificates, and instruments purporting to be or to represent, as defendants well knew, chances, shares, and interests in prizes which, by lot or chance, might be awarded to persons to the grand jury unknown in the drawings of the so-called 'Kentucky Lottery' and the so-called 'Henry Lottery,' enterprises offering prizes dependent upon lot or chance, and commonly known as 'policy,' and further charging that, in pursuance of said conspiracy, France and Hollen, of the defendants, did on October 4, 1895, cause certain described certificates of the character above mentioned to be carried from Covington, Ky., to Cincinnati, Ohio. The first witness for the government was E. D. Seeley, who testified that George Williams conducted a policy or lottery shop, in which he received money and bets, at the corner of John and Third streets in Cincinnati, Ohio; that George Bickle did the same thing at the corner of Fourteenth or Fifteenth streets and Central avenue in the same city; that Benjamin Hollen worked in the office in Kentucky where the bets and money were received, and acted as cashier for the lottery company; that there were carriers who carried the bets and money from Cincinnati to the place where Hollen was in Covington, and who brought back from there the certificates or slips announcing the first 12 numbers drawn in the lottery for that day: that Robert Irvine, one of the petitioners, and that Wagner, the other petitioner, were of those who carried the bets and money from the policy shops in Cincinnati to the office in Covington, and carried back to the policy shops in Cincinnati the slips or certificates showing the numbers drawn and the bets which had won; that these petitioners were carriers in October at the time the offense was charged to have been committed in the indictment; that John Edgar was a runner or carrier engaged in the same business between the head office in Covington and the policy shops in Cincinnati. Other testimony corroborative of this was introduced, and then Robert Irvine was called to the stand. The report of the part of his examination which shows the questions put him, his refusals to answer, and the action of the court is as follows:

'By Mr. Cleveland, United States Attorney: A. Mr. Irvine, I will ask you if, during that same period (from March 2, 1895, to October 4, 1895), Benjamin Hollen was not engaged in and connected with the H. and K. Lotteries or policies. (Objected to by counsel for defendants. Objection overruled. Exception reserved.) A. Well, I will have to decline to answer that question, on the ground that it might tend to incriminate me. The Court: I will not recognize that, as by answering that question you could not possibly criminate yourself. (The court here explains to the witness the law upon the subject.) A. Well, I still decline to answer. The Court: Then I will commit you to the Warren county jail, at Lebanon, Ohio, for the term of 30 days, your commitment to take place at the close of this examination. Mr. Cleveland: Q. I will ask you, Mr. Irvine, if George Williams was not, prior to October, 1895, and during that year, a policy writer, in Cincinnati, for the H. and K., or the Henry and Kentucky, lotteries or policies, located at Third and John streets, this city. A. I decline to answer that. The Court: That comes under the same rule, Mr. Irvine, and there is no reason why you should not answer it. Do you still decline? A. Yes, sir; I will have to, on the ground that it might tend to incriminate me. The Court: I have just told you that it cannot possibly do so. A. Well, I will have to decline to answer it. The Court: Then I will impose another 30 days' imprisonment in the Warren county jail, this sentence to commence upon the expiration of the preceding one. Mr. Cleveland: Q. I will ask you, Mr. Irvine, if Nat Hyams was, last year, prior to October, and during the year 1895, engaged as a policy writer for the H. and K. lotteries or policies, or the Henry and Kentucky policies, at a place on George street, between Plum and Central avenue, in this city. A. I will have to decline to answer that question, on the ground that it might incriminate me. The Court: Mr. Irvine, that comes under the same rule. You are bound to answer that question. Do you still decline? A. Yes, sir. The Court: Well, then, there will be a third sentence imposed upon you of 60 days in the Warren county jail, at Lebanon, Ohio, to begin at the expiration of the last two sentences. Mr. Cleveland: Well, how about George Bickle, during the same period? Was he a policy writer for the H. and K., or Henry and Kentucky, lotteries or policies? Or I will ask you the question definitely. Will you state whether or not George Bickle, prior to October 4th of last year, and during 1895, was or was not a policy writer for the H. and K. lotteries or policies located at the end of Wade street and Central avenue, in Cincinnati. A. I will have to decline to answer that question. Q. Upon what ground do you decline to answer? A. Upon the same ground, that it might tend to incriminate me. The Court: Well, I will sentence you to 90 days in the Warren county jail, the sentence to begin at the expiration of the preceding sentence. Mr. Cleveland: Q. Do you know what John Edgar's duties were as a clerk,-- what kind of duties he performed? A. Yes, sir. Q. What were they? A. Well, I decline to answer that question, on the ground that it might tend to incriminate me. The Court: I will give you another sentence of 60 days in the Warren county jail, this sentence to begin upon the expiration of the preceding one. Mr. Cleveland: Q. I will ask you to state, Mr. Irvine, if John Edgar was not a 'runner' for the H. and K. lotteries or policies, between Covington, Ky., and Cincinnati, Ohio, for a 'carrier' prior to October 4th of last year, and during 1895. A. I decline to answer that question, on the same ground. The Court: Well, I will then impose another sentence upon you of 60 days in the Warren county jail, to begin at the expiration of the preceding one. Mr. Cleveland: Q. What were the duties of J. C. Wagner, as clerk, so far as you know, if you know? A. I decline to answer that question. Q. Upon what ground? A. Upon the ground that it might tend to incriminate me. The Court: Now, Mr. Irvine, I will state this matter again to you. (Does so at length.) Do you still decline to answer that question? A. Well, I will state that I do know what his duties were. Q. What were they? A. That I will decline to answer. The Court: Then I will sentence you to another 60 days in the Warren county jail, to begin upon the expiration of the former sentence. Mr. Cleveland: Q. Mr. Irvine, I will ask you if John Edgar is not a carrier or 'runner' for the H. and K. lotteries or policies, for the Middle division of this city,-- if he was not, on October 4th of last year, and prior thereto, in 1895. A. Well, I will have to decline to answer that question, on the ground that it might tend to incriminate me. Q. I will ask you to state if J. C. Wagner was not a carrier or 'runner' for the Eastern division of Cincinnati, for the B. and K. lotteries or policies, during last year, prior to October 4th, and during 1895. A. Well, I will have to decline to answer that, on the same ground, that it might tend to incriminate me. The Court: I think the witness is bound to answer both of those questions. Do you still decline? A. Yes, sir; I must decline to answer, on the ground that it might tend to incriminate me. The Court: Then I will sentence you a further 60 days in the Warren county jail, to take effect upon the expiration of the former sentence. (Witness remanded to the custody of the United States marshal.)'

The questions put to Wagner, his refusal to answer, and the action of the court are shown by the following:

'Mr. Cleveland: Q. Mr. Wagner, do you know Benjamin Hollen? A. Yes, sir. Q. What was his business in October of last year, up to October 4, 1895, and during that year? A. I decline to answer that question, on the ground that it might incriminate me. The Court: No, you will have to answer that question. That is not privileged. Mr. Cleveland: Q. Do you still decline to answer that question? A. I will have to answer one way

...