CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT
White, McKenna, Holmes, Day, Van Devanter, Pitney, McReynolds, Brandeis, Clarke
MR. JUSTICE CLARKE delivered the opinion of the court.
These two cases present precisely the same questions for decision. They were argued and will be decided together.
In No. 365 Rosen and Wagner were indicted in the District Court of the United States for the Eastern District of New York with one Broder for conspiring to buy and receive certain checks and letters which had been stolen from "duly authorized depositories for mail matter of the United States," and which were known to the accused to have been so stolen. Broder pleaded guilty, and when he was afterwards called as a witness for the
Government the objection was made that he was not competent to testify for the reason that, as was admitted by the Government, he had theretofore pleaded guilty to the crime of forgery in the second degree, in the Court of General Sessions, in the County and State of New York, had been sentenced to imprisonment, and had served his sentence. The objection was overruled and Broder was permitted to testify. This ruling was assigned as error in the Circuit Court of Appeals, where it was affirmed, and it is now assigned as error in this court.
The second claim of error is that the trial court erred in refusing the motion of the defendants to direct a verdict of acquittal on the ground that no crime had been committed, for the reason that the box from which the mail was taken was not "an authorized depository of the mail," and that it was taken therefrom after it had left the possession of the Government.
Broder testified, and it was not disputed, that the letters were stolen from boxes placed by tenants for the receipt of mail in the halls of buildings in which they had their places of business. The boxes bore the names of the owners and were not locked, and while mail was deposited in them by the carriers no mail was collected from them.
In No. 438 Pakas and Broder, the same Broder as in No. 365, were jointly indicted for buying and receiving three designated checks, knowing the same to have been stolen from letters which had been deposited in the United States mail for delivery by the Post Office establishment of the United States. The same questions are presented, raised in the same manner, as in No. 365.
For the validity of the claim that Broder was disqualified as a witness by his sentence for the crime of forgery, the plaintiffs in error rely upon United States v. Reid, 12 How. 361, decided in 1851. In that case it was
held that the competency of witnesses in criminal trials in United States courts must be determined by the rules of evidence which were in force in the respective States when the Judiciary Act of 1789 was passed, and the argument in this case is, that by the common law as it was administered in New York in 1789 a person found guilty of forgery and sentenced was thereby rendered ...