6 F. 45 | U.S. Circuit Court for the District of Southern New York | 1881
The defendant was tried and convicted of having deposited in the mail a lottery circular. He now
Another ground .of the motion is that secondary evidence was permitted to he given of the address upon the envelope of the letter sent to the defendant, when the notice to produce did not specify the envelope. But the notice to produce described the letter as enclosed in an envelope, and, we think, sufficiently indicated an intention to call for both the envelope and its enclosure. We also think that a notice to produce a letter covers the envelope of the letter.
It )is further contended that the evidence was not sufficient to warrant the jury in finding that the defendant deposited the lottery circular, because the circular in question was sent in reply to a letter addressed to John Duff & Co., and there was no direct evidence that the defendant mailed it.
But it was proved that the defendant was accustomed to use the name of John Duff & Co., and sold lottery tickets under that name. It was' also proved that the defendant personally received the letter which contained the order for the circular in question, and also money to pay for two lottery tickets. From these-facts it was competent for the jury to infer that the defendant, who received the order for the circular and the pay for the tickets, was the person who remitted the circular and tickets, especially when it appeared that the circular and tickets were addressed to a fictitious name, known, so far as appears, only to the defendant and the,sender of the order.
The remainder of the questions presented arose in the course of empanelling the jury. Before the jury was sworn the defendant moved to quash the panel, and, in support of tho motion, read an affidavit showing that Anthony L. Comstock, who was to be a witness against him, had conversed with some of the jurymen on the panel about lottery prosecutions, and the evidence gathered by him and in his possession, and what he expected to do in the future; and that throe of the jurymen drawn heard the conversation, or portions thereof. The motion was denied. At the most, the motion was equiv-lent to a challenge to the array. Manifestly, the facts shown afford no support to a challenge to the array. The motion to quash the panel was therefore properly denied.
These questions involved the same proposition, i. e., that the fact that a person is engaged in an illegal calling must not be permitted to affect his credibility as a witness — a proposition clearly untenable. The occupation of a person may always be shown as bearing upon his credibility. A person is not shown to be incompetent to sit as a juror upon the trial of a thief by showing that he would give less credit to a thief than to one engaged in an honest calling.
It was next shown in support of the challenge that the juror had heard Comstock talking to a number of persons in the corridor before the trial about the wickedness of' the men in the lottery business and the injury that business was doing, and that he had certain proofs against the lottery men; but nothing was said about the defendant’s case. The talk was general about lottery men and the lottery business. The remarks here alluded to were not made in the presence of any person at the time sworn upon the jury in the defendant’s case, and it cannot be held that the fact of having heard, before he was empanelled, general talk about the wickedness of those engaged in an illegal occupation disqualifies a person from sitting as juror upon the trial of one engaged in such occupation who is charged with crime.
The ease, as presented in the record before us, shows a further ruling upon the challenge of the juror Perkins, to support which, no effort is made, and which is so palpably erroneous as to give rise to the supposition that its presence in the record may be attributed to an error in making up the case. As the record stands, the ruling alluded to entitles