The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1878-12-07
THE COURTS.
Charged with Violating the
Lottery Laws.
- ----. .a L
PROFESSIONAL WITNESSES.
A Verdict for the Plaintiff in the
Havemeyer Suit.

test lottery of considerable importance came
up before Commissioners Shields yesterday. the suit
being brought by the government against Potter
The action brought for the violation of section
1894 of the United States Revised Statutes providing
that any who knowingly deposits sends, to be
conveyed by mail. circular concerning lotteries,
shall be punished by fine Of not more than
$500 less than 500. On the hearing An
thony Comstock was sworn on the part of
the government. He testified substantially that he
wrote letter to Porter Co. in the Of one
Nichols at Norwak, Conn. requesting lottery tickets
and information concerning the same. In answer to
the letter came, signed Porter Co., incosng
lottery tickets and some circulars. On cross-exami-
nation by Judge Dittenhoefer Comstock answered
that no such person as Nichols was living; that he
signed Nichols name to the letter; that the answer
addressed to Nichols at Norwalk was never
delivered to Nichols but sent by the
Postmaster ut Norwalk Immediately to Mr.. Comstock.
On this testimony Judge Dittenhoefer moved to dis
miss the proceedings on the following grounds :
FrstThat by the evidence it appeared that person
by the name OF Nichols, to whom the letter adj
dressed was in existence. therefore offence
committed for the reason that letter impossible of
delivery cannot be conveyed by mail-the words,
conveyed by mail meaning conveyed for delivery
by mail The intent and spirit of the act to pre-
vent the OF the mail for the distribution Of such
matter not the of the mail without distri-
button Suppose. no said letter. deposited in the
mail addressed ITO the man in the NOON" it
could not be delivered, and the deposit would be
offence Second-That the offence was generated
and induced by government agent. The intent to
send the letter did not exist until Comstock created
it. 1t is not the OF detective decoy being
used get ut the evidence Of crime already conenl-
plated or in the course OF being committed but the
of CRIME originated and supelinduced by gov
eminent agent acting confederate with the other
party. This course, he added. was severely de-
nounced by United States Judges Sweet and Dillon
i'll Missouri case. Third-That under the statute
only the party who actually deposits the letter
sends it is guilty. The burden of proof is or the
prosecution show that tho defendant did the phys
ical act OF depositng sending. The statute docs
not read that any person who knowingly deposits
sends or causes to be deposited or sent shall be
guilty" but 1.-THE person who knowingly deposits
SENDS" The provision of law immediately preceding
the in question concerning the sending Of
obscene matter provides that the person '.who
deposits or causes to be deposited" shall
be punished. Therefore it becomes necessary for
the prosecution to show afirmatively that Porter
either deposited sent the letter. Suppose, he
cuded it lying loose on the counter, and the boy
il without any instructions whatever from Por
ter? 1t could not be claimed that Porter either de-
posted or sent the letter. safs5ses tsf
After further argument the Commissioner reserved
his decision. AAts aNast#@