UNITED STATES v. THORNBURG.

UNITED STATES v. WISE.

(District Court, S. D. Ohio. March, 1881.)

1. NAVIGATION LAWS-REV. ST. § 4472-CARRYING PETROLEUM ON PASSENGER VESSELS-PRACTICABLE MODE OF TRANSPORTATION.

Section 4472 of the United States Revised Statutes prohibits the carrying of petroleum and other dangerous articles upon passenger vessels, but excepts petroleum of a certain fire test upon routes where there is no other practicable mode of transportation.

Held, (1) that if there is an all-rail route over which the oil may be carried with any profit, it is a practicable mode of transportation; (2) but if the rate of freight by rail is so high as to prevent any profit upon the sale of the oil, or to destroy the trade between the points in question, it is not a practicable mode of transportation between those points.

Section 4472 of the Revised Statutes of the United States, under which these actions are brought, prohibits the carrying of petroleum, naphtha, nitro-glycerine, and other explosive and dangerous articles upon passenger vessels, but excepts from the prohibition refined petroleum of a certain fire test, upon routes where there is no other practicable mode of transportation. The case of U. S. v. Thornburg is a suit for penalty under this statute for carrying petroleum on a passenger steamer from Marietta to Cincinnati, and the case of U. S. v. Wise is for carrying it from Cincinnati to Memphis. Evidence was introduced by the government to show that there was an all-rail route between the points named, and it was claimed that it was a practicable mode of transportation, while the defence sought to prove that it was not a practicable mode, by showing (1) that the rate of freight by rail was so high as to leave no profit in the sale of the oil; (2) that the rate of transportation by rail between the points named was so high as to destroy the trade in oil between these points, inasmuch as it could be secured at a less rate from other points.

*Reported by Messrs. Florien Giauque and J C. Harper, of the Cincinnati bar.

Channing Richards, U. S. Dist. Att'y, for plaintiffs.

Moulton, Johnson & Levy and W. H. Jones, for defendants. SWING, D. J., (charging jury.) If there be an all-rail route over which the oil may be carried with any profit, it is a practicable mode of transportation; but, if the rate of freight by rail is so high as to prevent any profit upon the sale of the oil, or to destroy the trade in oil between the points in question,-in other words, if the rate of freight be so high as to prohibit commerce in oil between those points,—it would not be a practicable mode of transportion between those points.

I refuse to give the following charge, asked by the government: That if there be an all-rail route between the points in question, it constitutes a practicable mode of transportation, within the meaning of the statute, without regard to cost or distance.

Verdict for defendants.

UNITED STATES v. BAER.

(Circuit Court, S. D. New York. December 7, 1880.'

1. PERJURY-DEPOSITION-OATH-EVIDENCE-NEW YORK STATUTES. Upon a trial for perjury, for having sworn falsely as to the truth of a certain deposition, the notary, who administered the oath in the state of New York, testified that there was but one legal form of administering an oath in the 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;" that he "used that form substantially," but did not know whether he "put in the presence of the ever-living God;" but that he was "a little conscientious about that," and "a little careful about using it." Held, upon a motion for a new trial, that this testimony of the notary, coupled with the certificate given at the time to the effect that the affidavit was sworn to before him, was sufficient evidence to sustain a finding that an oath was administered to the accused.-[Ed.

Indictment. Motion for New Trial.

BENEDICT, D. J. The defendant was indicted under section 5392 of the Revised Statutes for having taken an oath before a notary public that a certain deposition subscribed by him

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 satisfied 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 de- ' fendant 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