Pilson v. United States, 249 F. 328

Pilson v. United States

249 F. 328 | 2d Cir. | 1918

LEARNED HAND, District Judge

(after stating the facts as above). [1, 2] The crime laid in the second count was in mailing a *330letter telling where, how, and from whom, and by what means, contraconceptivos might be obtained. Criminal Code, § 211. The letter answering the first decoy was set forth ipsissimis verbis; so also was the signature at the end of the circular; but the circular itself was not. The circular stated that, if Tansy Pills were not efficacious, binoxide of manganese would serve, which the corporation would sell at $3.10. It was objected at the trial that “the indictment and its two counts fail to set forth with legal sufficiency and reasonable certainty any crime.” The indictment surely set forth the crime with reasonable certainty; it advised the defendant of the place and time of mailing the letter; it set forth the letter in extenso and identified the circular beyond doubt. All the requirements of justice were answered; he knew what was the charge, and any judgment on the indictment ' would have been a goo,d bar under the plea of autrefois acquit. Had he wished a copy of the circular, he might have applied for a bill of particulars; but the substance of the circular appears with sufficient clearness. The only objection was that the indictment was not legally sufficient, which raised no specific question, and did not advise the court of the particulárs of the supposed insufficiency. We can see nothing in the indictment which could be challenged, except the failure to extend the circular upon the indictment itself. We do not find it necess'ary to pass upon that question, because, if that was.in fact the basis of the objection, it should have been stated more definitely. No one from the objection could have known that the defendant complained of this omission; indeed, the precise point was not even taken in .this court. We think that the objection was not sufficient to raise this question and that, as to tire question it did raise, it was not well taken.

[3] There was ample ground to connect the defendant with Wright’s act. He was in charge of the business; he opened the box in which the letters came and handed them over to Wright; he took the money order out of the second letter and cashed it, and wrote with his own hand the address-to the pill box; and he swore that he had given Wright instructions not to answer any letters similar to the decoys. It was extremely unlikely that Wright, who had no motive to disobey such instructions, should have disregarded them, without bringing the decoy letters to him. It was most unlikely that the defendant should have cashed the money order, or addressed the pills, if he had not read the second letter, or, if he had read the second letter, that he had not authorized Wright to answer the first, on which the indictment was based. The jury was clearly entitled to infer from the character of the business and the nature of the circulars that it was a part of his plan to respond to requests of the sort contained in the decoy.

[4] The admission of secondary evidence of the decoys was justified. It is true that the government served no notice to produce, and, if there was reason to suppose that the letters were still in the .possession of the defendant, this might be a valid objection to the admission of secondary evidence; but we have the defendant’s own .testimony that. he had produced all the letters which corresponded *331•to the subpoena in January, 1914, and the subpoena covered the decoys. It makes no difference whether this subpcena was served in the preparation of an earlier indictment or not. Prima facie, the government was in possession of all ¡the original letters which the defendant had. Furthermore, the defendant had told Noile (the post office inspector) before the trial that he had never seen the originals, and it must have been idle to give a notice to produce that which he had disclaimed ever receiving. The proper foundation for secondary evidence was therefore present. Briggs v. Hervey, 130 Mass. 186.

None of the exceptions seems to us valid, and the judgment is affirmed.