was true, and wilfully and contrary to said oath therein. stated material matter which he did not believe to be true. Upon a trial he was convicted, and he now moves for a new trial upon the ground that there was no evidence showing that an oath was taken.

The argument made in support of the motion is based upon the assumption that the only evidence to show that an oath was administered to the accused was the testimony of the notary that he said to the accused, "Do you solemnly swear to this affidavit, and is it true?" To which the accused replied that he did, without lifting up his hand or placing his hand upon a Bible.

Upon this assumption it has been contended that, inasmuch as no appeal to God was made either by word or deed, no oath was taken. But the assumption upon which this argument rests is unfounded. In another portion of his testimony the notary testified that there was but one legal form of administering an oath in this state, and that such form was, "Do you solemnly swear that the above affidavit subscribed by you is true, in the presence of the ever-living God?" and he then testified: "I used that form substantially. I don't know as I put in the 'presence of the everliving God.' I am a little conscientious about that. I am a little careful about using it." Question. "Careful to use it ?" Answer. "Yes." This testimony of the notary, coupled with the certificate given at the time to the effect that the affidavit was sworn to before him, is sufficient evidence to sustain a finding that an oath was administered to the accused.

The notary was an officer of the state of New York before whom an oath may be taken by virtue of section 1778 of the Revised Statutes. The statute of the state regulating the form of oath to be administered by its officers is as follows:

"Section 82. The usual mode of administering oaths now practiced by the person who swears, laying his hand upon and kissing the gospels, shall be observed in all cases in which an oath may be administered according to law, except in the cases hereinafter otherwise provided.

"Section 83. Every person who shall desire it shall be permitted to swear in the following form: You do swear in the presence of the ever-living God;' and, while so swearing, such person may or may not hold up his hand, in his discretion."

The notary correctly stated one form of oath prescribed by the statute, and he testified without objection that the form he gave was the only legal form. This evidence, coupled with his testimony that he is careful to use that form, and his certificate that the affidavit was sworn to, must have sat isfied the jury that on this occasion he used that form. No other conclusion is consistent with the finding that an oath was taken.

The question whether an oath would have been taken if a different form had been employed was not raised by the objection to the admission of the affidavit in evidence, and is not presented by the record. If the court had been requested to instruct the jury that in order to convict they must find that the notary used the words, "in the presence of the everliving God," and the request had been refused, such refusal would have raised the question that has been argued. But no such request was made. The case was allowed to go to the jury upon the evidence of the notary that there was but one legal form of administering an oath, and his testimony as to what he did. His testimony was sufficient to warrant the jury in concluding that on the occasion in question he used the form described by him, and, the jury having so found, their finding should not be disturbed.

The motion is therefore denied.

BLATCHFORD, C. J., and CHOATE, D. J., concurred.

UNITED STATES v. DUFF.

(Circuit Court, 8. D. New York. January 24, 1881.)

1. PRACTICE-NOTICE TO PRODUCE LETTER.

Notice to produce an original letter was served upon the defendant's attorney on the afternoon of the day before the trial, at 20 minutes before 5 o'clock. Held, where the defendant's attorney had his office in the same town, and near the place of trial, that the notice was sufficient.

2. SAME-SAME-ENVELOPE.

The notice described the letter as enclosed in an envelope. Held, that the notice sufficiently indicated an intention to call for both the envelope and its enclosure.

3. LOTTERY CIRCULAR-DEPOSIT IN MAIL-EVIDENCE.

Upon the trial of defendant for having deposited a lottery circular in the mail, in reply to a letter addressed to John Duff & Co., it was proved (1) that defendant was accustomed to use the name of John Duff & Co., and sold lottery tickets under that name; (2) that defendant personally received the letter which contained the order for the circular in question, and also money to pay for two lottery tickets; and (3) that the circular was addressed to a fictitious name, known only to the defendant and the sender of the order. Held, under these facts, that it was competent for the jury to infer that the defendant deposited the circular.

4. SAME-ADDRESSED TO FICTITIOUS NAME-REV. ST. § 3893.

A letter containing a lottery circular, addressed to a fictitious name, was deposited in the mail. Held, that such letter was within the scope of section 3893 of the Revised Statutes, relating to the mailing of letters or circulars concerning lotteries.

Held, further, that it did not make any difference in the act done by the defendant that the person to whom the letter was delivered was an officer of the United States.

6. SAME-JUROR-TALK ABOUT LOTTERY BUSINESS.

A juror who sat upon the trial of the defendant heard some general talk in the corridor of the court-house, before he was empanelled, about the wickedness of those engaged in the lottery business. Held, upon motion for a new trial, that he was not thereby disqualified. 7. WITNESS-OCCUPATION-CREDIBILITY.

The occupation of a person may always be shown as bearing upon the question of his credibility as a witness.-[Ed.

Indictment. Motion for New Trial.

BENEDICT, D. J. The defendant was tried and convicted of having deposited in the mail a lottery circular. He now

moves for a new trial. One ground of the motion is that error was committed at the trial in admitting secondary evidence of the contents of a letter sent to the accused, without proof of sufficient notice to produce the original. The case shows that the place of business of the accused was in Nassau street, near the place of trial. It was proved that notice to produce the original letter was served upon the defendant's attorney on the afternoon of the day before the trial, at 20 minutes before 5 o'clock. The original not being produced, secondary evidence of its contents was admitted. In this there was no error. "In town cases service of notice on the attorney on the evening before the trial is in general sufficient." 2 Russ. on Crimes, 743.

Another ground of the motion is that secondary evidence. was permitted to be 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 envel ope 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.

It is further contended that error was committed in refusing to direct an acquittal, when requested so to do, upon the ground that the letter containing the circular in question was incapable of delivery, being addressed to a fictitious name, and therefore was not within the scope of the statute creating the offence. But letters addressed to fictitious names are not incapable of delivery, as this case shows. Moreover, the statute says nothing about delivery. It deals with mailing and sending to be mailed. The words are: "No letter or circular concerning lotteries. shall be carried in the mail. Any person who shall knowingly deposit or send anything to be conveyed by mail in violation of this section shall be punished," etc. The case shows that a letter containing a circular concerning a lottery was deposited in the mail. The jury found that the defendant deposited the letter with intent to have it conveyed by mail. The finding was justified by the evidence, and it brought the defendant within the scope of the statute. The letter was none the less a letter deposited in the mail for the purpose of being conveyed by mail, because at the place to which it was conveyed it was delivered to a person who was corresponding under a fictitious name. Nor does it make any difference in the act done by the defendant that the person to whom the letter was delivered was an officer of the United States. The refusal to direct an acquittal was therefore correct.

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 the 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 three of the jurymen drawn heard the conversation, or portions thereof. The motion was denied. At the most, the motion was equivlent 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.