Horner v. United States

delivered the opinion of the court.

. On the 13th of January, 1891, an. indictment was found by a grand jury of the District ■ Cojirt of the United States for the Southern District of Illinois, against Edward H. Horner, charging that, on December 28, 1890, he unlawfully and knowingly deposited and caused to be deposited, in the post office-at New York, in the State of New York, “a certain circular coritaining a list of prizes awarded- at the drawing of a lottery, which said circular was-then and there numbered. 538, and purported to be issued from the banking-house' óf

There was a 2d count, charging Horner with having, on December 30, 1890, unlawfully and knowingly deposited, and caused to be deposited, in the post office .at Hew York, in the State.of Hew York, a certain circular containing lists of prizes awarded at the drawings of certain specified lotteries, “ which said circular was then and there enclosed in a sealed envelope, duly stamped with postage stamps for the amount of postage required thereon by law, and was then and there addressed, upon the outside of said envelope, to Mrs. M. Schuchman, 624 Illinois St.,. Belleville, Illinois, in said district, and was then and there, after being so deposited in the post office as aforesaid, carried by mail for delivery to said Mrs. M. Schuch-man, at 624 Illinois street, in Belleville, Illinois, in said district, according-to the direction thereon.”

:A 3d count charged that Horner, on December 28, 1890, unlawfully and knowingly deposited, and caused to be deposited, in the post office at Hew York, in .the State of Hew York, a certain circular containing a list of prizes awarded at the drawing of a specified lottery, “ which said circular was then and there addressed to Mrs. M. Schuchman, 624 Illinois St.,- Belleville, Ill., in said district, and was . then and: there carried by mail for delivery to said Mrs. M. Schuchman, 624 Illinois street, in the State of Illinois, and’ in said district, according to the direction on said circular when it was so deposited in the post office at Hew York by said Edward H. Horner, as aforesaid.”

■ A 4th count charged that Horner, on December 29, 1890, unlawfully arid knowingly deposited, and caused to be deposited, in the post, office at Hew York, in the State of Hew York, “ a certain- printed publication having a caption fl-f the tenor following, viz., ‘banking-house of.E.

Á 5th count charged that Horner, on the '31st of December, 1890, within said Southern District of Illinois, unlawfully and knowingly, did “ cause to be delivered by mail. to Mrs. M. Schuehman, 624 Illinois St., at Belleville, in the State of Illinois, and in said district, a certain circular containing a list of prizes awarded at the drawing of a lottery in two-and-a-half per cent city of Antwerp bonds of -1887, at Antwerp, on the 10th day of November, a.d. . 1890 ;• ■ which said circular was then 'and there numbered 538, and had a caption printed thereon, in substance, as follows, viz., ‘ banking-house of E. H. Horner, No.'88 Wall street,’ and was dated' on the 27th day of December, a.d. 1890; which said circular he, the said Edward PL Horner, theretofore, to wit, on the 29th day of December, a.d. 1890, did knowingly deposit, • and cause to be deposited, in the post office at New York, in the State of New York, addressed to said Mrs. M. Schuehman, at 624 Illinois St., in Belleville; in. the State of Illinois', and which said circular was then and there carried by mail .for delivery-to said Mrs. M. Schuehman, 624 Illinois street, at Belleville, in the State of Illinois, according to said direction so upon said circular, as aforesaid.”

■ That 'indictment was founded ón § 3894 of the- Revised Statutes of the United'States,'as amended by the.act of September 19, 1890, c. 908, 26 Stat. 465 , which-reads' as follows: “N.p letter, postal card or circular concerning .any’lottery, so-called gift concert, or other similar enterprise offering prizes dependent upon lot or chanco^ or- concerning schemes devised for the purpose of obtaining money or property, under false pretences, and no1 list of the drawings at any lottery or similar ■

On. the 15th of 'January, 1891, a post office inspector made a/complaint on oath before John A:- Shields, a United Stales commissioner for the Southern District of Yew York, founded on the said indictment, and on a bench warrant issued thereon' by the judge of the District Court of the United States for the Southern District' of Illinois, asking for the arrest of Horner. Commissioner Shields thereupon, on the. samé day, issued a warrant to the marshal of the United States for the Southern District of Hew York, for the arrest of Horner and the. fringing of him before the said commissioner. Horner was arrested and brought before the commissioner. He de

The District Judge of the United States for the Southern District of Hew York issued a warrant to the marshal for that district, to remove Horner to the Southern District of Illinois, “to be tried in said■ district upon such, counts in the indictment now pending in said district as the said Edward H. Horner can be legally tried upon.” In issuing that warrant, the District Judge delivered an opinion, (44;Fed. Hep. 677,) basing his decision upon the ground that the fifth count of the indictment charged an offence which was not, and could not be, completed' without the deliver}1 of the matter by mail'to the person to. whom it was. addressed; that such offence consisted, under the third clause of the statute, in knowingly causing the prohibited matter to be delivered by mail; that, under the fifth count, although the voluntary act began in Hew York, by deposit in the mail, the offence of causing the delivery by mail could not be consummated except by- delivery to the person and at the place intended; that, in whatever way Horner might have caused such delivery to be made, either by deposit in the mail at Hew York or elsewhere, and wherever his voluntary act might- have begun, the offence under the third clause of the statute, charged in the fifth count of the indictment, was not committed until the delivery by -mail was made; that, when such delivery was •made,' the Offence was committed, and was committed at the

Section.731 of the. Revised Statutes of the United States reads as follows: “When any offence • against the United States is-begun in one judicial circuit and completed -in another, it shall be deemed to have been committed in either, and may be dealt with, inquired of, tried, determined, and punished in either district, in the same manner as if it had been actually and wholly committed therein.” The- words “judicial circuit” in that section ^re probably printed by a clerical error for “ judicial district,” as, in § 30 of the act of March 2, 1867, c. 16§,-14 Stat. 484, from which § 731 is taken, the words are “ judicial- district.” . ,

On the .same day oh which the warrant of -removal was issued, Horner .presented a petition to the .Circuit Court of the United States for the Southern District of Hew York, setting forth, in substance, the foregoing facts, and praying, for a writ of habeas corpus to the marshal and' for a writ of certio-rari to the commissioner. The writs were issued, Horner .was ■ brought before the Circuit Court, and the commissioner made a return to the writ of certiorari. The Circuit Court, held -by. Judge Lacombe, dismissed the writ of habeas corpus and remanded Horner to the custody of the marshal.;-and-after-wards, on its .order,-he was released on $2500 .bail, pending an appeal by him,to this.court,.which appeal was duly allowed, a¡nd perfected, and.the record filed in this court, prior to the passage of the Circuit Courts of Appeals act’of March 3,1891, c,'ol7, 26 Stat. .826. Therefore, no question* arises as to the jurisdiction of the appeal by-this court.-, .

The appellant -has filed 23' assignments of error, 13 of which attack the sufficiency of the counts, of the, indictment, 6 • of them allege that-the warrant-of-removal, iff executed, wilí. deprive Horner of- the right secured .to him by article 3, § 2, '

The point is taken for Horner that § 3894 of the Revised Statutes, as amended by the act of September 19, 1890, is unconstitutional and void, as being in violation of the 1st Amendment to the Constitution,, which provides that “ Congress shall make no law . . . abridging the freedom of speech or of the press.” But this question was disposed of by the decision of this court recently made in Ex parte Rapier, ante, 110.

It is further urged, that Horner is held for trial in the Southern District of Illinois, for acts committed in the South' ern District of New York. But we agree with the District, Judge in his opinion1 that, whatever may be said, of .the first 4 counts of the indictment, the 5th count is good, for the reasons stated by him. That count distinctly alleges- that Horner unlawfully and knowingly caused to be delivered by mail, to Mrs. Schuchman, at Belleville, in the State of Til in oís, and in the Southern District of Illinois, a certain circular containing a list of prizes awarded at the drawing of the lottery specified in that count. The allegation of the count, that such circular had been knowingly deposited, and caused to be 'deposited, by Horner, in the post office at New York, addressed to Mrs. Schuchman. at Belleville, Illinois, and that such circular was then and there carried by mail for delivery to her at said Belleville, according to the direction so upon it, is inserted merely to show how the circular came to be in the mail; but the gravamen of the charge is, that Horner unlawfully and knowingly caused the circular to be delivered by mail to Mrs. Schuchman, at Belleville, Illinois, in the Southern District of Illinois.

The District Judge, in exercising his- jurisdiction, under § 1014 of the Devised Statutes, to issue .a warrant for the removal of Horner to the Southern District of Illinois, had a right to determine whether or not the offence was within the jurisdiction of the District Court of the United States for that district, and that determination was reviewable by habeas eor~ $>us. Gallan v. Wilson, 127 U. S. 540 .

Objection is also made to the language of the warrant of removal, in that it directs the marshal to remove Horner to the Southern District of Illinois, “to be tried in said district upon such counts in the indictment now pending in said district as the said Edward H. Horner can be legally tried upon.” It is urged that, notwithstanding this language, the warrant puts Horner upon trial in the Southern District of Illinois upon the whole indictment, and that it is void for indefiniteness, and does not inform Horner of the nature and cause of the accusation against him.

"We do not think there is any force in either of these objections. If Horner should be put upon trial in Illinois upon all the counts of the indictment, he can demur to. any of them, and thus have it determined which of the counts he shall meet. The '5th count is sufficiently specific, and the deter--

The question of the identity of Horner was a question of fact,' which the United States commissioner had full jurisdiction to decide, for the purpose of removal; and his decision will not be reviewed on habeas corpus. In re Cortes, 136 U. S. 330 ; Stevens v. Fuller, 136 U. S. 468 .

The fact that one of the witnesses before the commissioner stated “ that the person now in custody is Edward.IT. Horner, of the city of Hew York,” serves only to confirm his identity with the person charged in the indictment, because it is alleged therein, and particularly in tlpe 5th count, that the circular was deposited in the post office at Hew York, and purported to come from the banking-house of Horner in that city. ••

The order of the Circuit Court, dismissing the writ of habeas corpus and remanding the accused, is

Affirmed.