Page:Federal Reporter, 1st Series, Volume 1.djvu/434

e2Ô ÏJi.DKRÀ.L, XiKi^^.xi^Ji. �United States v. Noelke. �{Circuit Court, S. B. Nm York. March 30, 1880.) �Indiotmknt — Rkv. St. { 3894 — Mailing a Letteb Concerning a Lot- �TBBY — WEITING DeSCEIBKD AS A " LeïTER AND CnjCULAE." — A writ- �ing ia not improperly described as a "Letter and Circnlar," in an indictment under section 3894 of the Revised Statutea, providing that " no letter or ciicular concerning lotteries # • # shall be carried in the mail." �&AME — UnNECESSABT ALLEGATION — " CONCERNING A LOTTEKT OfFEKING �Prizes." — It is not necessary to allege that the writing waa one "oon- cerning a lottery oflering prizes." �SAMB — INFORMAL AVEIÎJrENT — VbBDICT— ARIÎEST OF JUDGMENT. — The �informai averment of facts necessary toahow the illegal quality of the writing is cured by verdict, and will not sustain a motion in arrest of judgment. �Samb — TJnnbcessaet Avebment — Lottert ts the Sensb Contbm- PLATBD BY THE Statutb. — It is not neeessary to allege facts showing that the writing set forth concerned a lottery, "in the sense contemplated by the statute," when it clearly appears upon the face of such writing that it was such a letter as was within the prohibition of the statute. �Same — Cibcular — Allegations in H^o Vbrba. — A circular alleged to have been mailed in violation of the statute should be set forth in hœc verba, and the omission is not cured by verdict. �Trial — Juror — " Prejudice Against the Lottery Business." — A juror ja not rendered incompetent, upon the trial of such indictment, by the fact that he bas a prejudice against the lottery business or those who are engaged in it, or that he is disposed in hia mind to put an end to the traffic in lottery tickets, or that he is in favor of active measures for the suppression of such business. �EviDENCB — Papkrs Bnclosed with Letter — Res Gest.*;. — Papera en- closed in the same envelope with the writing set forth in the iuciict- ment, are admissible in evidence as part of the res gestœ. �Circumstantial Evidence— Proof of Motive and Opportunity to Commit the Opfence. — Circumstantial evidence is competent which tends to show that the defendant had both motive and opportunity to mail the writing in violation of the statute. �JuDiciAL Discretion— liE-oPENiNG Case- Peoof op Lottery.— It was within the discretion of the judge who presided at the trial to permit the case to be re-opened, in order to permit the prosecution to prove the existence of th6 lottery, concerning which the papers in question were made. ��� �