United States v. Horner

• Decision Date: 23 January 1891
• Citation: 44 F. 677
• Parties: UNITED STATES v. HORNER.
• Court: U.S. District Court — Southern District of New York

44 F. 677

UNITED STATES v. HORNER.

United States District Court, S.D. New York.

January 23, 1891

Edward Mitchell, U.S. Atty., and Maxwell Evarts, Asst. U.S. Atty.

Alfred Taylor and Hemans 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, application 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 prohibit the carrying or delivery, by mail, of any 'letter postal-card, or circular, concerning any lottery, * * * or list of the drawings of any lottery,' and then says:

'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 mail, shall be deemed guilty of a misdemeanor, and on conviction, shall be punished by a fine of not more than five hundred dollars, or by imprisonment for not more than one year, or by both such fine and imprisonment, for each offense. Any person violating any of the provisions of this section may be proceeded against by information or indictment, and tried and punished, either in the district at which the unlawful publication was mailed or to which it is carried by mail for delivery according to the direction thereon, or at which it is caused to be delivered by mail to the person to whom it is addressed.'

This last provision is not enforceable any further than is compatible with the sixth amendment 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)...