456
THE GREEN BAG
Dascom, uiTMass. 404; McFarland v. State, 68 Wis. 400, 32 N. W. 226; Thomas v. State, 114 Ala. 31, 21 South. 784; Bulson v. People, 31 Ill. 409; Peters v. Koepke, 156 Ind. 33, 59 N. E. 333; State v. Green, 16 Iowa 239; i Wh. Cr. Law § 546; Archbold's Cr. PI. & Pr. 352; State v. Roberts, 98 N. C. 756, 3 S. E. 682; State v. Moore, 48 South eastern Reporter, 573. FOUNDLING HOSPITALS. (RIGHT TO CUS TODY OF CHILD) N. Y. SUPREME COURT, App. Div. FIRST DEPT. Under the statutes of New York relative to the maintenance and government of foundling hospi tals, it is held that the mother of a child committed to such an institution cannot recover the custody of the child after it has been indentured by the hospital, and that the hospital cannot be required to furnish extracts from its records to show what disposition has been made of the child. In re Shapiro, 92 New York Supplement, 1027. The first part of this holding would seem necessarily to follow from the provisions of the statutes on the subject. Laws 1872: C. 635 authorizes a foundling hospital to take under its care children intrusted to it by their mothers, and provides that such children shall be deemed to be in the lawful charge of the hospital and may be indentured as clerks, apprentices, or servants. Other sections provide for the cancellation of indentures and make the managers of the hospital guardians of such chil dren, with power to see that the contract is faith fully performed. From these provisions it is plain that the argument of the court that the object of the statute would be defeated if the parents of children committed to the care of the hospital were at liberty to resume the custody of the child at any time. The argument in support of the other holding leads to a conclusion so harsh as to incline one to qxiestion its validity. The statute also provides that the institution may be required to furnish to the parents such extracts from its records relating to the child as the court may deem proper, and it is said that no good purpose could be accomplished by granting such an appli cation, the only object of which would be to annoy or interfere with the child or those to whom its custody has been awarded. FRAUDULENT USE OF MAILS. (MENTAL HEALING) CIRCUIT COURT OF APPEALS, FIFTH CIRCUIT. The Circuit Court of Appeals of the Fifth Circuit has reversed the judgment of conviction in the case of United States v. Post. Defendant Post
was prosecuted for using the mails to defraud and was convicted, the charge of the trial judge being published in 128 Federal Reporter, 950. One of the indictments charged that defendant adver tised to practise mental healings, and received pay to treat patients, when she did not intend to ad minister any treatment; and it was held that the mere averment that she was engaged in the busi ness of mental healing did not state a scheme or artifice to defraud, but that the gist of the offense was that she did not intend, when she so adver tised and received money, to give the treatment for which she was paid, and that in order to obtain a conviction there must be affirmative evidence that she had no intention to give the treatment. The statute on which the prosecution is based (Rev. St. § 5480, as amended) is construed, and is held not to make any discrimination, with respect to the right to the use of the postal establishment of the United States by persons whose vocation is healing, between those who profess to cure by the use of mental science and those who use drugs, so that in a prosecution for such use of the mails, the question of defendant's good faith is the cardinal question. If the defendant practised in good faith, without the intention to defraud, there was no offense, although in fact the theory and practice followed were worthless. An instruction of the lower court that the jury should ignore evi dence offered by defendant as to the possession by her of certain powers as mental healing, because it was contrary to well-established laws of nature, is condemned; and it is said that when a question of fact is tested, although it may involve the ex istence of a power not generally recognized, evi dence bearing on the question must be considered as in other cases. On this point the court says: "Science has not yet drawn, and probably never will draw, a continuous and permanent line be tween the possible and impossible, the knowable and unknowable. Such line may appear to be drawn in one decade, but it is removed in the next, and encroaches on what was the domain of the impossible and unknowable. Advance in the use of electricity and experiments in telepathy, hypno tism, and clairvoyance warn us against dogma tism. The experience of the judiciary as shown by history should teach tolerance and humility, when we recall that the bench once accounted for familiar physical and mental conditions by witchcraft, and that, too, at the expense of the lives of innocent men and women. In that day it was said from the bench that to deny the exis tence of witchcraft was to deny the Christian re ligion. Juries would have done better. Then and now questions of fact were best tried by jury."
