7 F. 193 | U.S. Circuit Court for the District of Southern New York | 1881
The defendant was convicted on a criminal information filed against him by the United States attorney, prosecuting for the United States, under section 3891 of the Revised Statutes, for unlawfully and knowingly depositing in the mail of the United States, and sending to he conveyed thereby, a circular concerning a lottery. On being arraigned on the information the defendant stood mute, and the court directed a plea of not guilty to be entered for him, and it was entered. An objection of the defendant’s counsel to such action was overruled by the court, and said counsel excepted to said ruling and to said direction. The defendant now moves an arrest of judgment on the above ground. It is provided by section 1032 of the Revised Statutes as follows:
*194 “When any person indicted for any offence against die United States, whether capital or otherwise, upon his arraignment stands mute, or refuses to answer thereto, it shall be the duty of the court to enter the plea of not guilty on his behalf, in the same manner as if he had pleaded not guilty thereto. And when the party pleads not guilty, or such plea is entered as aforesaid, the cause shall be deemed at issue, and shall, without further form or ceremony, be tried by a jury.”
This section is based on the act of April 30, 1790, § 30, (1 St. at Large, 119,) the act of March 3, 1825, § 14, (4 St. at Large, 118,) and the act of March 3, 1835, § 4, (Id. 777.) The act of 1790 related to an indictment for treason, or one for any offence made capital by that act, and authorized the 'court to proceed to the trial of the person standing mute, as if he had pleaded not guilty. The act of 1825 related to an indictment for any offence not capital, and gave a like authority. The act of 1835 related to an indictment for any offence, and was in the terms of section 1032 of the Revised Statutes. The word “information” is not found in any of the statutes.
It is contended for the defendant that the court had no jurisdiction to try him, because he was tried on an information and stood mute, and the court had no power either to enter a plea of not guilty for him, or to proceed to his trial as if he had pleaded not guilty. It is contended that this statute alone can be looked to as the source of authority; that by mentioning an indictment it excluded an information; that the word “indictment” cannot be construed to include “information;” and that the case is one of a casus omissus, so that no person who chooses to refuse to plead to a criminal information can be tried upon it. Provisions of statute are referred to which mention an information as well as an indictment in the same enactment, and from this it is argued that, as an indictment is mentioned in the present instance, and not an information eo nomine, the case of a person standing mute on an information is not provided for.
By subdivision 20 of section 629 of the Revised Statutes, cognizance of all crimes and offences cognizable under the authority of the United States is given to the circuit courts. The offence in the present case is one which can be prose
The question arose in regard to an indictment in the circuit court of the United States for the district of Maryland, in 1818, in U. S. v. Hare, 2 Wheeler’s Cr. Cas. 283, before Mr. Justice Duvall and Judge Houston. The defendants were indicted under section 19 of the act of April 30, 1810, (2 St. at Large, 598,) for robbing a mail-carrier. The punishment was death. On being arraigned they stood mute. The act of 1790 was the only statute on the subject. The offence was one not made capital by that act. It was contended for the defendants that the court had no power to enter a plea of not guilty for them, or to try them. It was urged that the court must ascertain by a jury whether the
The foregoing view is consonant with reason, and with the only proper administration of the criminal law. In the present case the court directed the plea of not guilty to be entered, and that was done. This was a matter of form, and was no prejudice to the defendant, and amounted to no more than ordering the trial to proceed as if such plea were entered. Irrespective of the foregoing views, the word “indicted,” in section 1032, is fairly to be construed to include an information. An information generally differs in nothing from an indictment in its form and substance, except that it is filed by the proper law officer of the government, ex officio, without the intervention or approval of a grand jury. 2 Story on Const. (4th Ed.) § 1786. In The Queen v. Steel, L. R. 2 Q. B. Div. 37, 40, Lord Coleridge says that a criminal informa
In Bailey v. Kalamazoo Publishing Co. 40 Mich. 247, 255, it is held that under a justification in a suit for a libel there is no substantial variance between an allegation that a man has been indicted, and proof that he has been prosecuted and convicted in a justice’s court on a criminal information.
A motion for a new trial is made on the ground of alleged errors at the trial. One Luddington, having been called as a juror, was examined. He testified that he could not say positively whether he was a member of the Society for the Suppression of Vice. He continued:
“ I don’t think 1 was ever proposed. I know Anthony Oomstock indirectly, slightly. I have met him at his office in Nassau street, in this city, and went there to see him in regard to some business of the society. I have not contributed to the society recently, but I have, perhaps, within two years given money to it. It was not within a year, but perhaps within two years, 1 contributed this money. 1 know the society is engaged in prosecuting men in the lottery business from what I have seen in the papers during the last year or two. 1 know Mi. Comstock is the agent of the society to which I contributed funds. I think I could And a verdict fairly on the evidence if it should appear on the trial that the defendant was engaged in the business of selling lottery tickets. I think I could give the testimony of the defendant proper weight if it was a question of credibility between him and Mr. Comstock. 1 could also give the testimony of the defendant proper weight if it became a question of veracity between him and Mr. Comstock, it being proven that defendant was engaged in selling lottery tickets. I don’t know that I should give the testimony of Mr. Comstock more weight than I should that of the defendant, he being proved tobe engaged in the lottery business. When 1 say 1 don’t know, I mean that I should give the evidence of the man I supposed was telling the truth more weight than the one I thought was not. I think the fact that the defendant was engaged in the lottery business would influencie me in giving his testimony less weight than that of Mr. Comstock if it was a question of veracity between them, because I ■would not like his business.”
The defendant’s counsel thereupon challenged the juror for favor. The challenge was overruled, and the defendant’s counsel excepted. It is contended for the defendant that the challenge should have been sustained; that while a prejudice
The juror showed himself to be competent. All that he said was that, if a question of veracity arose between the testimony of the defendant and that of Mr. Comstock, he thought that the fact that the defendant was engaged in the lottery business would influence him in giving the testimony of the defendant less weight than that of Mr. Comstock. Although a question arose as to whether the jury would believe the testimony of the defendant, no question of veracity arose between the defendant and Mr. Comstock on the trial. It did not appear that the defendant was a member of the society referred to. . He had not contributed any money to it for over a year. The case is not within the dicta in Commonwealth v. Eagan, 4 Gray, 18. The court did not err in refusing to direct a verdict for the defendant. The question was one for the jury, and was presented to the jury in a proper manner by the court. There was no exception to the charge. It is contended that the jury were bound to believe the testimony of the defendant, it being uncontradicted.
In The Helen R. Cooper, 7 Blatchf. 378, it was said by Judge Woodruff that where a witness, otherwise unimpeached,
It was not error to refuse to charge the jury that they must believe the testimony of the defendant as to his absence and his instructions, and therefore acquit him.
The motions must be denied.
Note. See United States v. Duff, 6 Fed. Rep. 45.