plained of in the argument; but it was urged that the court erred in refusing to charge as requested in the second paragraph of the first request, and in requests 2, 3, 4, 5, 6, 7, 8 and 9.

$2488. The object of an obscene book is not material in a prosecution for mailing it.

As to the second paragraph of the first request, we are of opinion that the object of the use of the obscene or indecent words is not a subject for consideration. In addition to the observations already cited from the case of Regina v. Hicklin, Ch. J. Cockburn says further: "May you commit an offense against the law in order that thereby you may effect some ulterior object which you have in view, which may be an honest or even a laudable one? My answer is, emphatically, no. The law says, you shall not publish an obscene work. An obscene work is here published, and a work the obscenity of which is so clear and decided that it is impossible to suppose that the man who published it must not have known and seen that the effect upon the minds of many of those into whose hands it would come would be of a mischievous and demoralizing character. Is he justified in doing that which clearly would be wrong, legally as well as morally, because he thinks that some greater good would be accomplished? .. I hold that, where a man publishes a work manifestly obscene, he must be taken to have had the intention which is implied from that act; and that, as soon as you have an illegal act thus established, quoad the intention and quoad the act, it does not lie in the mouth of the man who does it to say: Well, I was breaking the law, but I was breaking it for some wholesome and salutary purpose.' In Steele v. Brannan (before cited), it was contended that the book treated of a matter which might properly be the subject of discussion and controversy, and that the object of those who put it forward was not only innocent but praiseworthy, inasmuch as they intended thereby to advance the interests of religion and of the public, and that, therefore, the book was not obscene. The court held otherwise, and approved the ruling in the Hicklin case. The views of Judge Clark, to the same effect, have been quoted. As to request 2, it was charged in substance, so far as its propositions are correct. The rest of it falls within what has been said as to the last paragraph of the first request. This last observation applies also to request 3. request 4, its substance was charged, and, as to anything in it not charged, there was no error in not charging it.

The observations made as to the last paragraph of the first request apply also to requests 5, 6 and 7, and the first paragraph of request 8. The last paragraph of request 8 was, in substance, charged. We perceive no error in the refusal to charge as requested in request 9. This statute differs from no other criminal statute, and the jury were properly instructed on the subject of a reasonable doubt. We have given no attention to any exceptions appearing in the case which are not presented in the printed brief of the counsel for the defendant. The case contains the following statement: "During the absence of the jury, the court sent to them by the officer in charge, and, in the absence of the prisoner, after exhibiting the same to the counsel for the prisoner, a direction in writing that they might deliver a sealed verdict to said officer, and that thereupon they should be allowed to separate and directed to appear in court at the hour of the opening of the court on the next day. At about 6:30 o'clock the next morning (March 21, 1879), the jury delivered a sealed verdict to the offieer, and were thereupon allowed by him to separate. The court resumed its session at 11 o'clock A. M. on that day, and the jury, having been called by

the clerk, announced, by their foreman, that they had agreed upon a verdict, and that he had handed a sealed verdict to the officer in charge of them. The counsel for the prisoner duly excepted to the direction of the court that the jury should bring in a sealed verdict at all, and to the reception by the court of such a verdict from the officer, and also to the right of the jury to separate at all until they had rendered their verdict in open court. Under these exceptions the jury were allowed to render a verdict of guilty, as stated in the sealed verdict received by the court from the officer, in the presence of the defendant, and which was thereupon announced and recorded in open court as a verdict. of guilty. The counsel for the prisoner then and there requested that the jury be polled, which was done, and thereupon each of the jurymen, to the question of the clerk whether the verdict announced was his verdict, answered in the affirmative." It is contended for the defendant that the direction of the court to the jury, in the absence of the prisoner, and without his consent, that they might deliver a sealed verdict to the officer in charge and then separate, and their doing so, is ground for a new trial. The propositions urged to this end are, that sealed verdicts have no authority in law without the prisoner's consent; that they have been introduced with great reluctance and great suspicion in civil cases, and are always a source of danger; that the separation of juries in criminal cases, after the charge of the court, is always a recognized source of danger to the prisoner, to which the law does not voluntarily expose him; that the prisoner cannot prove a negative to show that he has not been injured; that the direction of the court is no justification or protection; that an instruction to the jury, that, after a long confinement, they may obtain a much desired release by a sealed verdict, is a direct inducement to the minority of the jury to yield against the prisoner and was effective against him in this case; that the absence of authority for the course pursued upon this trial, and the reluctance with which any separation, before or after the charge, is al lowed, is conclusive for the prisoner, on this point; and that, while the rule has been somewhat relaxed from necessity only, this has never been done so as to allow of a sealed verdict and a general separation of the jury, without the prisoner's presence, knowledge and consent, before their real verdict should be rendered in court and in the prisoner's presence.

2489. It is not error, in a trial for a misdemeanor, to permit the jury to bring in a sealed verdict, under limitations, and then separate.

It appears, by the case, that the direction in writing to the jury, that they might deliver a sealed verdict to the officer and might then separate, was exhibited to the counsel for the prisoner before it was sent to the jury by the court; that the jury strictly followed such direction; that the court received the sealed verdict from the officer the next morning, in the presence of the jury and of the defendant, in open court, after the jury had then and there announced that they had agreed upon a verdict and that such sealed verdict contained it; that the verdict of guilty announced and recorded was the verdict contained in such sealed verdict; and that, on the polling of the jury, at the request of the counsel for the defendant, each juror stated that the verdict announced was his verdict.

It is laid down in Whart. Cr. L. (6th ed., § 3125), that, "in misdemeanors, there is no difficulty, in practice, in permitting the jury to separate during the trial." In the present case, the statute expressly declares the offense to be a misdemeanor. Wharton cites the leading case of Rex v. Woolf, 1 Chit., 401, where it is held that, in a case of misdemeanor, the dispersion of the jury

does not vitiate the verdict. The dispersion referred to is one before agreement on a verdict. A fortiori, a dispersion after agreement, and after the verdict is written and signed and sealed up, and where the jury afterwards attend in court with it, and the court receives and opens it, and the jury give an oral verdict in accordance with it, on being polled, does not vitiate the trial. In People v. Douglass, 4 Cow., 26, it is laid down that the mere separation of a jury is not a sufficient cause for setting aside a verdict either in a civil or a criminal case, if there be no farther abuse. In People v. Ransom, 7 Wend, 417, 424, it is said that any irregularity or misconduct of the jurors will not be a sufficient ground for setting aside a verdict, either in a criminal or a civil case, where the court are satisfied that the party complaining has not, and could not have, sustained any injury from it. In Commonwealth e. Carrington, 116 Mass., 37, the question arose whether, in a criminal case not capital, the jury may be authorized by the court, without the consent of the defendant, to separate after agreeing upon, signing and sealing up a paper in the form of a verdict, and afterwards return a verdict in open court in accordance with the result so stated and sealed up. It was held that such a course is proper. The court say: "The tendency of modern decisions has been to relax the strictness of the ancient practice which required jurors to be kept together from the time they were impaneled until they returned their verdict, or were finally discharged by the court. In civil cases the jury are never kept together at the intermissions of the sittings of the court pending the trial; and it is well settled, that, after the case is finally committed to them, they may be allowed by the court to separate, if they first agree upon and seal up their verdict, and afterwards aliirm it in open court; and that, if their verdict, when opened, does not cover all the issues on which they are to pass, the case may be recommitted to them and a verdict subsequently rendered will be good. Winslow v. Draper, 8 Pick., 170; Pritchard v. Hennessey, 1 Gray, 294; Chapman v. Coffin, 14 Gray, 454. But if, upon returning into court, one of the jurors dissents from the verdict to which all had agreed out of court, it cannot be recorded. Lawrence e. Stearns, 11 Pick., 501. In capital cases, indeed, the uniform practice in this commonwealth has been to keep the jury together from the time the case is opened to them until their final discharge. But the practice is equally well settled, and in accordance with the decisions elsewhere, that, pending a trial for a misdemeanor, the jury may be permitted by the court, without the consent or knowledge of the defendant, to separate and go to their homes at night without vitiating the verdict. The King v. Woolf, 1 Chit., 401; S. C., nom. The King 2. Kinnear, 2 B. & Ald., 462; McCreary v. Commonwealth, 29 Penn. St., 323. If the jury, in a case of misdemeanor, are allowed, without the consent of the defendant, to separate after the case is finally committed to them by the court, and before the verdict is returned, the verdict cannot be recorded unless it clearly appears that the verdict was not influenced by anything that took place during the separation. It was accordingly held, that, where the jury were allowed by the judge to disperse upon stating to the officer they had agreed on and sealed up a verdict, and, upon com.ng into court, rendered an oral verdict, without any sealed verdict being produced or opened, or its contents made known to the defendant or his counsel, the verdict was invalid. Commonwealth v. Durfee, 100 Mass., 146; Commonwealth v. Dɔrus, 108 Mass., 488. But, when all possibility of improper influences is excluded by conclusive evidence that the jury arrived at and reduced to writing, before their separation, the same result which they afterwards announced in open

court, the verdict may be received and recorded. State v. Engle, 13 Ohio, 490; State v. Weber, 22 Miss., 321; Reims v. People, 30 Ill., 256." These views seem to us to be the clear result of the authorities, and to be founded in reason. In the present case, it clearly appears that the jury, before they separated, arrived at the same result which they afterwards orally announced in due form, when inquired of by the clerk, in open court, and, therefore, that the verdict was not influenced by anything that took place during the separation. We have examined the cases cited by the counsel for the defendant and find in them nothing inconsistent with the foregoing views. After a careful consideration of all the points presented, we are unanimously of opinion that the motion for a new trial, and to set aside the verdict, and for an arrest of judgment upon the same, must be denied.

§ 2490. Stealing. Where the felonious abstraction of the letter from the mail is made the principal offense by the statute, and the abstraction of the draft from the letter is rather an incident increasing the punishment than the foundation of the prosecution, it is sufficient to set out the draft according to its legal effect. It is unnecessary to allege by whom the draft was drawn. But, if it is alleged that the draft was drawn by Joseph Johnson, it cannot be admitted in evidence if it appears on its face to have been drawn by Jos. Johnson. United States v. Keen,* 1 McL., 429. An indictment for stealing the mail, based on a statute, need not allege any value. United States v. Burroughs,* 3 McL., 405.

§ 2491. Where an indictment for stealing a bank-note from a letter in the mail alleges that the letter was intended to be conveyed from a certain post to another certain post, it was held that this allegation was not surplusage, but must be proved as laid, inasmuch as it was necessary to allege that the letter was intended to be conveyed by post. United States v. Foye, 1 Curt., 364 (§§ 912-915).

§ 2492. The statute imposes on a carrier who steals a letter from the mail a higher penalty where the letter contains an article of value. An indictment which alleges that the carrier stole a letter is sufficient, without stating whether the letter contained an article of value. But it must be alleged that the letter contained an article of value, if such was the fact, in order to subject the carrier to the higher penalty. United States v. Fisher,* 5 McL., 23.

§ 2493. Franking.— In an indictment for unlawfully franking letters it is not necessary to charge that the defendant was a member of congress when the offense was committed. Dewee's Case, Chase's Dec., 531.

§ 2494. The charge in an indictment of franking letters for another, which were liable to pay postage, so that they should pass through the mail free of charge, sufficiently negatives the idea that the letters were written for the defendant by his order, and on the business of his office. Ibid.

§ 2495. Non-mailable matter.- Under section 3894, Revised Statutes, declaring that "no letter or circular concerning lotteries, so-called gift concerts, or other similar enterprises, offering prizes, or concerning schemes devised and intended to deceive and defraud the public for the purpose of obtaining money under false pretenses, shall be carried in the mail, and any person who shall knowingly deposit or send anything to be conveyed by mail, in violation of this section, shall be punished,” etc., an indictment is not bad for describing the writing sent as a "circular and letter." It cannot be objected to an indictment, under this statute, that it omits to charge that the paper was one "concerning a lottery offering prizes." That the indictment does not show that the paper sent was illegal, except by the averment that the paper was "a certain letter and circular concerning a lottery," taken in connection with the words "La. tickets," "all prizes," and "official copy of drawings," appearing in the paper itself, is a formal defect in the indictment, designed by section 1025, Revised Statutes, to be disregarded, it appearing that the defendant has suffered no injury thereby. This being an averment in substance that the letter set out referred to a lottery, it appears, upon the face of the paper, that it is within the prohibition of the statute. Such a circular or letter must be set forth in hæc verba, and it is not sufficient to set it forth by a description of its contents. United States v. Noelke, 17 Blatch., 554 ($ 975-937). See § 2448-51.

2496. It is sufficient, in an indictment under the act of July 12, 1876, declaring it to be a misdemeanor to deposit or cause to be deposited for mailing or delivery anything declared to be non-mailable, to describe the article so as to identify it, or by stating to whom it was addressed, and then to allege that it is within the terms of the statute, as that it is an obscene book, pamphlet, paper, print, picture or otherwise, or an indecent thing. It need not state its contents. Bates v. United States, 10 Fed. R., 92 (§§ 1010-14).

§ 2497. An indictment for mailing an obscene pamphlet need not set forth the obscene and objectionable matter, and a bill of particulars will be furnished, if necessary, on the order of the court. United States v. Foote,* 13 Blatch., 418.

§ 2498. Embezzlement.— In an indictment against a postal clerk for embezzling a letter it is not necessary to aver that it has not been delivered to the person to whom it was addressed. United States v. Jenther,* 13 Blatch., 335. See § 2439 et seq.

§ 2499. An indictment for embezzling a letter described it as inclosed in "an envelope addressed and directed as follows, that is to say, to A., No. 122 W. 26 St., etc., a more particular description, etc., being to the jurors unknown, said envelope having been destroyed." The proof showed the letter to have been directed "A., No. 122 W. 26 street." Held, that the insertion of the "to" before the name and the use of the "st." for "street" was not a variance which was material. Ibid.

§ 2500. Section 279 of the Revised Postal Laws, reciting that "any person employed in any department of the postal service of the United States who shall secrete, embezzle or destroy any letter intrusted to him, or which shall come into his possession, and which was intended to be conveyed by mail, or carried by any person employed in any department of the mail service, and which shall contain any bank-note, bond, draft, promissory note, or agreement for the payment of money; any such person who shall steal or take away any of the things aforesaid out of any letter which shall have come into his possession, either in the regular course of his official duties, or in any other manner whatever, and provided the same shall not have been delivered to the party to whom it is directed, every such person shall, on conviction thereof, for every such offense, be imprisoned," etc., is held to create two offenses, the one of embezzling a letter, and the other the stealing the contents of a letter. An indictment, therefore, which charges only the offense of embezzling a letter, and contains no charge of stealing the contents, is suficient. United States v. Taylor, 1 Hughes, 514.

§ 2501. The averment, in an indictment for embezzling letters, that the letters were actually sent by mail, is a sufficient averment that they were “intended to be sent by post.” United States v. Golding,* 2 Cr. C. C., 212.

§ 2502. A count in an indictment which charges that the defendant, having embezzled certain letters and packets, he therefrom stole certain bank-notes, is not objectionable as charging two separate offenses, since the charge of embezzlement is a mere matter of inducement, and the gist of the indictment is the stealing. Ibid.

§ 2503. A charge of embezzling sundry and great numbers of letters and packets, and stealing therefrom sundry and great numbers of bank-notes, is not bad for uncertainty, when the grand jurors say that the number and particular description thereof is yet unknown to them. Ibid.

§ 2504. An indictment of a postmaster for embezzling a letter containing bank-notes need not describe the notes particularly nor state whose property they were. United States v. Brown,* 3 McL., 233.

§ 2505. In an indictment against an employee of the post-office department for embezzling a letter it is not necessary to set up the office held by the defendant. United States v. Clark,* Crabbe, 584.

§ 2506. It is not necessary, in an indictment against a postoffice employee for embezzling a letter containing a bank-note, to specify the name of the bank, or, where the denomination of the bill is given, to allege that its value equaled its denomination. Ibid.

7. Perjury.

[See XIV, supra.]

SUMMARY — Before a United States commissioner, § 2507.- Under act of March 3, 1825, § 2508.— It must be shown what charge was under investigation, § 2509.— Subornation of perjury, $ 2510, 2511.

§ 2507. An indictment for perjury which alleges the perjury to have been committed on the examination of certain persons charged with crimes or offenses against the United States before a certain commissioner of the United States (naming him), duly appointed according to law, and having competent authority and power to arrest offenders for any crime or offense against the United States, and to examine the same, and to examine witnesses and administer oaths in the matters and proceedings relating to and concerning the offenses and crimes charged against the persons named in the indictment, but does not state how, or by whom, or under what statute, or for what purpose, such commissioner was appointed, does not contain a sufficient common law averment of the legal authority and jurisdiction of the commissioner to administer the oath under which it is alleged that the defendant committed