Opinion of the Court.

E. H. Horner, at 88 Wall street, and was dated at New York, December 27, A.D. 1890, and 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, at 624 Illinois street, in Belleville, Illinois, in said district, according to the said direction thereon." 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 New York, in the State of New 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. Schuchman, 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 New York, in the State of New 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 New York by said Edward H. Horner, as aforesaid."

A 4th count charged that Horner, on December 29, 1890, unlawfully and knowingly deposited, and caused to be deposited, in the post office at New York, in the State of New York, "a certain printed publication having a caption of the tenor following, viz., banking-house of E. H. Horner, No. 88 Wall street,' bearing date at New York on the 27th day of Decem

Opinion of the Court.

ber, A.D. 1890, and numbered 538, containing a list of prizes awarded at the drawing of a lottery; which said publication was then and there enclosed in a sealed envelope, duly stamped with postage stamps, and was addressed to Mrs. M. Schuchman, 624 Illinois St., Belleville, Ill., in said district, and was then and there carried by mail, after being so deposited as aforesaid, for delivery to Mrs. M. Schuchman, 624 Illinois street, Belleville, Illinois, in said district, according to said direction thereon."

A 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. Schuchman, 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 H. 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. Schuchman, 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. Schuchman, 624 Illinois street, at Belleville, in the State of Illinois, according to said direction so upon said circular, as aforesaid."

That indictment was founded on § 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: "No letter, postal card or circular concerning any lottery, socalled gift concert, or other similar enterprise offering prizes dependent upon lot or chance, or concerning schemes devised for the purpose of obtaining money or property under false pretences, and no list of the drawings at any lottery or similar

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scheme, and no lottery ticket or part thereof, and no check, draft, bill, money, postal note or money order for the purchase of any ticket, tickets or part thereof, or of any share or any chance in any such lottery or gift enterprise, shall be carried in the mail or delivered at or through any post office or branch thereof, or by any letter carrier; nor shall any newspaper, circular, pamphlet or publication of any kind containing any advertisement of any lottery or gift enterprise of any kind offering prizes dependent upon lot or chance, or containing any list of prizes awarded at the drawings of any such lottery or gift enterprise, whether said list is of any part or of all of the drawing, be carried in the mail or delivered by any postmaster or letter carrier. 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 viola tion of this section, or who shall knowingly cause to be deliv ered 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 offence. 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."

On the 15th of January, 1891, a post office inspector made a complaint on oath before John A. Shields, a United States commissioner for the Southern District of New 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 same day, issued a warrant to the marshal of the United States for the Southern District of New York, for the arrest of Horner and the bringing of him before the said commissioner. Horner was arrested and brought before the commissioner. He de

Opinion of the Court.

manded an examination respecting the charge, and in default of $5000 bail, was committed to the custody of the marshal, to be thereafter brought up for examination. The examination took place before the commissioner, and was attended by counsel for the government and for Horner, with the result, that the commissioner committed him to the custody of the marshal to await a warrant for his removal by the District Judge of the United States for the Southern District of New York, the commissioner certifying that it appeared to him, from the testimony offered, that Horner was the person charged in the warrant, and that there was probable cause for believing him guilty of the offence charged, and that he was thereby committed for trial at the Southern District of Illinois.

The District Judge of the United States for the Southern District of New 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. Rep. 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 delivery 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 New 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 New 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

Opinion of the Court.

place where the delivery was made, in accordance with the intent of Horner and by his procurement, although it might perhaps also be deemed to have been committed at the place of deposit; and that the offence charged in the fifth count was, therefore, triable in Illinois, under the Constitution of the United States as well as § 731 and § 3894 of the Revised Statutes, as amended; citing In re Palliser, 136 U. S. 257.

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 are probably printed by a clerical error for "judicial district," as, in § 30 of the act of March 2, 1867, c. 169, 14 Stat. 484, from which § 731 is taken, the words are "judicial district."

On the same day on which the warrant of removal was issued, Horner presented a petition to the Circuit Court of the United States for the Southern District of New York, setting forth, in substance, the foregoing facts, and praying for a writ of habeas corpus to the marshal and for a writ of certiorari 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 afterwards, on its order, he was released on $2500 bail, pending an appeal by him to this court, which appeal was duly allowed, and perfected, and the record filed in this court, prior to the passage of the Circuit Courts of Appeals act of March 3, 1891, c. 517, 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, if executed, will deprive Horner of the right secured to him by article 3, § 2,