l!:X PARTE GEISLER.
Ul
that the sending of such letters did not constitute a publication of the writings therein inclosed." . James A. OonnoUy, U. S. Dist. and Edward 'Roe, Asst. U. S. Atty., for the United Statel" ", : John M. Palmer and Jame8 O. Robimon, for defendant. TREAT, District Judge, (orally.) Since this statute has been amended by the insertion of the wotd "writing," I am of opinion that all writings.whether inclosed under a sealed envelope or not, signed or unsigned, that are of an obscene, lewd, or lascivious character. are nonmailable matt13r, and covered by the statute. As to the question raised regarding what constitutes a publieation, I shall hold that to inclose an obscene, lewd, or lascivious writing in a sealed envelope and mail it to another is a publication of that writing, and would place it within the power of the party receiving the letter to institute a prosecution for the offense.
}4
parte GEISLER.
(Circuit Court, N. D. Texas. June, 1889.) CoUNTERFElTING-J"URISDICTION OP STATE COURTS.
The judiciary act of 1789. § 11, provides for the exclusive cognizance by the United St",tes courts of allofl'enses against the laws of the United States, unless such law·. otherwise direct. Act Congo 1825, § 20, (RAV. St. U. S. § 5457,) and section 26, (Rev. St. U. S. § 5328,) providing for the punishment of the counterfeiting of coin, deolare that "nothing in this act shall beconstrned to deprive the courts or the individual states of jul'isdiction of the laws of the several states over o11eoses made punishable by this act." Held, that· the state courts have power to punish counterfeiting under the state statutes.
or bring into this state, or have in his possession, with intent to pass as true, any counterfeit coin, knowing the same to be counterfeit, he shall be pnnished by imprisonment in the penitentiary not less than two nor more than five years."
'Petition by Adam J. Geisler for Writ of Habeas<l>ryus. Article 463, Pen. Code Tex.· declares: "If any person, with intent to uefraud, shall pass, or offer to pass, 8S true,
The petitioner was indicted in the district court of Grayson county, Tex., for a violation of this article of the state law, was tried and convicted, and sentenced by the court, in pursuance of the verdict of the jury, to imprisonment in the state penitentiary for the term of two years. He now seeks discharge from imprisonment, on the ground that the court by which he was tried and sentenced had no jurisdiction of the offense with which he was charged, and of which he was convicted. S. W. Miner, for petitioner.' WOODS, Circuit Justice. The ground upon which the jurisdiction of the state court is denied is that the offense charged was an offense
"REPORTER,
yol. 50.
Aizapleutldet the authority, of the United States, and Jl1at the courts of the United States have exclusive jurisdiction thereof. ,Th13judiciary 1789, § 11, (1 St. p.18.,) provides tpat, the circuit courts shall have exclusive cognizance of all crimes and cognizable under the authority of.:tb.e United States, except when, this, act otherwise provides or the laws of the United States shall otherwise direct. The petkthm:f.w habea8 corpus is bMedQn this section. After' the passage of tl:ie'I,9.<nof1789, tQ-wit, 1825, an,act was passed entitled 'Jwtrlllore effectually to provide for the punishment of certain crimes States, and for other purposes." ,4 St.p. 115. The of this act declared it to be an offense to pass, utter, PllllUmj:orsell, or attempt to PM/J', utter, publish, or sell, as true, any fo,lile,;fprgedj or, counterfeitedcQin.,,: in the, resemblance or similitude of thegAld.; '(ilfsilver coin which !llld been or mIght hereafter be coined at United Stl1te!3. ' 1'pis section" witll,a slight amendment incorporated therein by the acts of February 12, 1873, (17 St. p. 434,) and the act of January 16, 1877, (19 St. p. 223,) is still in force, and constitutes section 5457 of-the United States Revised Statutes. The twenty-sixth and last section of the act of 1825 declared: "Nothing in this act contained shall be construed to deprive the courts of the individual states of jurisdIctioo()f the laws of the several states over offenses made punishable by this act."
This section is stilT hi force, and' appears, in substance, as section 5328 of the United States Revised Statutes. Conceding what is un-, guestionhbly 'Well congress may exclude the jurisdiction of the CQurtsof the states {rorQ, QfiEmses within the power of congress v. Moore, 5 Wheat. 1; The Moses Taylor, 4 Wall. V." Hunter, 1 Wb,eat.304;. Com. v. Fuller, 8 Mete. (:Mass.) 313, .......it appears', in respect to theo-fi'ense of which the petitioner stands convicted, not only that congress has not excluded, but on the contrary has expressly reserved and the jurisdiction of the state courts. The district cOl1'rt of Grayson county had therefore jurisdiction to try aqd tll!l petitioner for ,the offense with which he was charged, and convicted, and his imprisonment under such sentence islawful. The petition for the writ .of habea8 corpus. must therefore be denied.
UNITED STATES
v.
MULHOLLAND.
413
UNITED STATES V. MULHOLLAND. (Dt.mict
Court, D. Kentuc'kl/. April 21, 1899.)
L
POST OFPIOEll-LAROENY FROM MAILS-EvIDENOE-HEARSAY. Evidence of an admission of the theft of llo registered letter,made
by a per'JoD since deceased, is not admissible upon the trial of a postmaster for the embezzlement of such letter, as it is not such a declaration against interest as admits of the introduction of hearsay evidence.
II.
SAME....:.ll:V-IDENCE-REMOTENESS.
Evidenceis.uot admisl.!ible in suoh a case that the declarant was caught in the act of steaUng money from the post office nearly six months after the letterhad be'en stOlen, especililly as it was not shown that he could have had access to such letter in the of his Ofticial duties or otherwise.
8.
NEW TRIAL-NEWLy-DISCOVERED EVIDBNOE-Ex PARTE AFFIDAVITS.
Ex parte affidavits, upon motion for anew trial, made by witnesses for the state, cpntainingstatements more favorable to the defendant than the testimony given at the trial, Fl'ill not sustain a motion for such new triaL
At Law. , At the November term, 1891, in the district court of the United States for the 'district of Kentucky, the grand jury returned an indictment ngainstdeferidant,as follows: "United states of America, District of Kentucky-set.: In the district court.of the United States for the sixth judicial circuit and district of Kentucky, held at Padncah, November term, in the year of our Lord eighteen bundredand ninety-one. Count. The grand jurors of the United States of America, impaneled and sworn, and charged to inquire in and for the district of KentuGky, on their oath present that Hugh Mulholland, late of the district aforesaid, on the seventeenth day of July, in the year of Ollr Lord eighteen hundred and ninety-one, in the district aforesaid, being then andtllere employed in a department of the postal service of the United States,'to wit, as postmaster ,at Paducah, Kentucky, feloniously did secrete and embezzle a certain letter, which had then and there come into the posses'r sion of thesajd Hugh Mulholland, and which said lett was intended to be conveyed by mail of the United States, and was then and there addressed to M. A. Sills & Son. Model, Tennessee, and which said letter then and there articles pf value, to wit, two hnndred and eighty-seven and nine hundreC!.ths dollars, consisting of United States treasury notes and bank notes, and of the valne of $287.29, and a further description of whiqh said letter and its contents is to the jurors aforesaid unknown; against the peace and dignity of the United States, and contrary to the form of the statute in such case made and prOVided. Section 5467, Rev. St. par. I. Second Oount. And the grand jurors aforesaid, upon their oath aforesaid, do further present that the said Hugh Mulholland on the seventeenth day of JUly, inthe year of our Lord eighteen hundred and ninety-one, in the district aforesaid, being then and there employed in a department of the postal service of the United States, to wit, as postmaster at Paducah, Kentucky, feloniously did steal and take certain articles of value, to wit, treasury notes of the United States and national bank notes, amounting in the aggregate to. and of the value of, two hundred and eighty-seven dollars, out of a certain letter then and there addressed to M. A.Sills Son. Model, Tennessee, which said letter had then and there come into his possession in the regular course of his official duties, and which said letter was then and there intended to be by mail of the. United States, and which said letter was not delivcan ered to}l1e party to whom it was dIrected, and a further description of which