UNITED STATES v. CRANDELL, 25 F. Cas. 684

THE COURT was of opinion that the United States could not, for the purpose of proving the intent of the defendant in publishing the libel stated in the first count, give in evi-’ dence to the jury any papers subsequently published by the defendant, or found in his possession unpublished by him, which would be libels, and might be substantive subjects of public prosecution, if published. Mr.

Key then offered to prove the publication, by the defendant, of the libels stated in the first, second, and third counts, by proving the following facts, namely: That a large collection of libels, and among them several copies of those charged in those counts, with the words, “read and circulate” written thereon in his handwriting, were found upon the traverser; .that he undertook to account for their being in his possession. and gave untrue and contradictory accounts; that he acknowledged that he had brought here those then shown to him, being the same now in court, and that they comprehended all he brought here except about a dozen; and that prior to the trav-erser’s arrest sundry similar publications had been privately sent to various persons in this district by some unknown person or persons in the district. 1 Hawk.

P. C. c. 73, § 13. “The having in one’s custody a. written copy of a libel, publicly known, is an evidence of the publication of it.” Rex v. Beare, 1 Ld. Raym. 414; 3 Chit. Cr. Law, 871, 875; 1 Chit. Cr. Law, 568; Maloney v. Bartley, 3 Camp. 210; 1 Russ. 235. The counsel for defendant objected, and cited Holt, Libel, 291; Rex v. Burdett. 4 Barn. & Ald. 95; Starkie, Ev. pt. 4, pp. 849, 853; 1 Vent. 31; Smith v. Wood. 3 Camp. 323; 12 Vin. Abr. 227, “Evidence,” T, 661; Rex v. Fitton, 2 Keb. 502.

THE COURT was of opinion that the attorney of the United States may give evidence of the publication, in this district, of any copies of the libels charged in the first and second eounts of the indictment. That if he shall have given any evidence tending to show such a publication here, he will be permitted to show that other copies of the same libels were found in the possession of the defendant.

He may then give evidence that a certain number of papers or pamphlets were found in the possession of the defendant, together with the copies of the libels charged, and of the publication of which, in this district, he shall have given evidence; but he will not be permitted to give in evidence to the jury the contents of any of the papers other than those charged as libels in this indictment, unless such other papers have relation to the libels charged in the indictment, andr would not, in themselves, be substantive ground- of prosecution.

He may then give evidence to the jury of any confessions or acknowledgments made by the defendant in relation to any of the matters charged in the indictment. Starkie, Sland. & L. 351, 352, and Wyatt v. Gore, Holt, N. P. 299.

The attorney for the United States, having offered evidence to prove that the defendant was asked if he was aware of the nature of the pamphlets put into his hands in New York, and said he supposed they were of'the same nature as those he had been a subscriber for, and that he approved the sentiments they contained, offered in evidence to the jury the publications found on the defendant relating to the same subject with the libels charged in the indictment; and contended that they were competent to be given to the jury with evidence that some of them were indorsed in the defendant’s handwriting with the words, “read and circulate,” to prove, not only the evil intent of the defend-' ant in publishing the libellous paper charged in the first count, but as evidence of the publication, by the defendant, of the paper charged as a libel in the second count.

He contended also that the pamphlets themselves purporting, upon their title page, to be printed and published in New York, are evidence of their own publication, and that it is only necessary to prove a copy to have been found in the defendant’s possession, with the words, “read and circulate” indorsed thereon by the defendant to charge him with the publication of them here.

THE COURT was of opinion that the printing and publishing of these pamphlets, in New York, is not evidence of their publication here, so as to fix upon the defendant here such a knowledge of their publication as to make his possession alone, even • /ith the words “read and circulate” written upon them, evidence of the publication of them, by him, here.

That, in order to show the evil intent with which the defendant published the paper charged in the first count, it is not competent for the United States to give, in evidence to the jury, other unpublished papers or pamphlets, found in the defendant’s possession, unless accompanied by evidence of some acknowledgment or admission by the defendant that he knew and approved their contents.

That the evidence did not appear to the court to justify the inference that the defendant knew and approved the contents of those pamphlets, unless it can be connected with evidence that they were of the same nature with those which he had been a subscriber for.

The attorneyfor the United States then gave evidence tending to show that the defendant had been a subscriber for the “Emancipator;” and the court permitted the attorney of the United States to give in evidence several numbers of that paper, as containing the sentiments alluded to by the defendant, as those which he approved, to show the evil intent with which he published the libel charged in the first count; but confined him to the reading of the sentiments contained in the “Emancipator” itself; and refused to permit him to read to the- jury the- publications advertised for sale by the secretary of the Anti-Slavery Society, in the Emancipator, although evidence had been given tending to prove that the defendant .was a member of that society.

The attorney of the United States then being about to offer evidence in support of the third count; the counsel of the defendant objected that the count was so vague, uncertain, and imperfect, that the court ought not to permit evidence to be given in support of it; and the counsel on both sides agreed that the court should now consider the question as if upon a motion to quash that count. Mr. Key, for the United States, and in support of the indictment, cited the precedents in 2 Chit. 45, 47,' and 4S. The defendant’s counsel cited 3 Chit. 9Ó1, 903, 904; 1 Russ. 210.

THE COURT (MORSELL, Circuit Judge, contra) permitted evidence to be given upon the third count, without prejudice to a motion in arrest of judgment upon that count, if the verdict should be against the defendant.

On the part of the defendant, it was then urged that the papers, found upon the defendant, had been illegally seized under pre-tence of an unlawful warrant commanding the officer, to whom it was directed, to arrest the defendant, and to search for and seize any incendiary pamphlets or papers which should be found in the defendant’s possession, and bring them, with the defendant, before the justices who issued the warrant, and that therefore the pamphlets and papers so found are not admissible in evidence to the jury. Upon that point the defendant’s counsel cited Entick v.

Carrington, 2 Wils. 275, 282, 291; State Trials, 1052, 1063; Lord Chief Justice Lee’s Opinion; and St. 7 & 8 Geo. IV. c. 29, § 63. Mr. Key, for the United States, contended, that if the warrant was illegal, (which he did not admit,) yet the fact that the libels were found upon him, may be given in evidence, in the same manner as you may, upon an indictment for counterfeiting coin, prove that the defendant was found in possession of the instruments and implements of coining; or upon an indictment for burglary, give evidence of false keys, &c.

THE COURT was of opinion that the seizure of the papers, even if illegal, cannot prevent the United States from giving, in evidence, the fact that the defendant had in his possession some of the libels charged in the indictment, and of the publication of which, in this district, evidence shall have been given.

The attorney for the United States having offered evidence tending to show that the libel charged in the second count, and one of those charged in the third count, had been published, in this county, offered to prove that printed copies of the same were found in the possession of the defendant, at the time of his arrest, with the words “read and circulate.” written by the defendant, upon some of them. The counsel for the defendant, contended, that, if, in any case, the possession of a copy of a libel is evidence of a publication by the possessor, it must be a written copy of a known published libel. 1 Hawk. P.

C. c. 73, § 13; 1 Vent. 31; Rex v. Fitton, 2 Keb. 502; Rex v. Beare, 2 Salk. 418, Carth. 409, and 1 Ld. Raym. 414; Want's Case, Moore, 627; 1 Russ. 235; Barrow v. Lewellin, Hob. 62; 2 Saund. Pl. & Ev. 209; Burdett’s Case, 4 Barn. & Ald. 135; Starkie, 419; 12 Vin. Abr. 239. The attorney of the United States, in reply, cited Starkie, Ev. pt. 4, pp. 849, 871, 875; 3 Chit. 875c; 1 Russ. 235; 12 Vin. Abr. tit. “Evidence,” T, b, 61.

THE COURT permitted the United States to give evidence to the jury, that the defendant was found in possession of printed copies of the libel charged in the second count, and of one of those charged in the third count; of the publication of which, in this district, some evidence had been given. The attorney for the United States then offered, in evidence, the pamphlets containing the pictures, which were charged as libellous, in the third count.

THE COURT permitted the pictures to be given in evidence, and shown to the jury, but refused to suffer the pamphlets, attached to the pictures, to be read to the jury by the attorney of the United States, as no part but the pictures was charged as libels in that count.

The attorney of the United States then offered to read to the jury the pamphlets attached to the pictures, to show the evil intent with which the pictures were published. [See Case No. 3,350.] THE COURT said, that if the matter now proposed to be read, is not charged in the indictment, and would be, of itself, a substantive libel, and therefore indictable, it cannot be given in evidence. The attorney for the United States offered to examine, as a witness, one John Colelazer, a colored man, born of a white woman. The counsel for the defendant objected.

But THE COURT (THRUSTON, Circuit Judge, contra) overruled the objection, and the witness was sworn and examined. The evidence being closed, Mr. Carlisle, who opened the argument to the jury, on behalf of the prosecution, was about to read some parts of the pamphlets containing the libellous matter charged in the indictment, which parts had not been read in the opening of the evidence. The defendant’s counsel objected to anything being read in argument, to the jury, which had not been read when the pamphlets were offered in evidence.

But THE COURT overruled the objection, and said that the United States had not only the right, but were bound, to give in evidence the whole of the publication which contains the libellous matter charged; and either party has a right to read any part of it, pertinent to the issue. Verdict, not guilty.