inquired if it was in writing.
The witness answered, yes.
*599Daggett, Tor defendant, objected to any parol evidence of this contract, insisting that the writing itself ought to be produced.
The district attorney said it was in the hands of one Ely of New York, who refused to give it up, and we could not compel him to produce it.
LIVINGSTON, Circuit Justice, said Mr. Attorney had shown that it could be produced; he had named the person who had it, and stated where he lived. Mr. Attorney ought to have compelled Ely to ^attend and produce the contract. Nothing is clearer than that proof of the contents of a writing cannot be received, unless it be shown that it could not be produced.
PER CURIAM.The evidence offered is inadmissible.
Wolcott, for the prosecution. We shall take this ground, that the allegation in the indictment of a contract with the postmaster-general is mere surplusage, and consequently that no proof of it is necessary. The words of the statute are, “that if any person shall knowingly and wilfully obstruct or retard the passage of the mail, or of any driver or carrier, or of any horse or carriage carrying the same, he shall, upon conviction, for every such offense, pay a fine,” etc. 4 Stat. 104, § 3. That the mail should be carried in pursuance of a contract with the postmaster-general is a qualification not found in the statute. The mail is, in fact, carried on some of the most important routes in the United States, without any previous contract. It is so carried between Baltimore and Philadelphia, and between the city of Washington and New Orleans. There cannot be a doubt whether if the mail be obstructed on these routes the penalty shall accrue. If we prove all that is necessary to subject the defendant, there must be a verdict against him whether other matters stated in the indictment be proved or not.
Daggett, in reply. This allegation is not impertinent matter; it is in no sense foreign to the cause. The obstruction contemplated by the statute is of a mail carried by the direction and under the authority of the postmaster-general. The indictment sets forth the manner in which such direction was given, in which such authority was derived. Now, though this allegation be more particular than it was necessary it should be, yet having been made it must be proved. This is the rule even in civil cases. Bristow v. Wright, Doug. 665. It applies more strictly in criminal eases.
EDWARDS, District Judge,was of opinion that no prosecution for obstructing the passage of the mail could be supported without showing a written contract with the postmaster-general.
LIVINGSTON, Circuit Justice, inclined to think that an indictment might be so framed as to subject the defendant without proof of a written contract; yet as this indictment states a contract which is not impertinent or foreign to the cause, he was clearly of opinion that it ought to be proved. The court will be more strict, he added, in requiring proof of the matters alleged in a criminal than in a civil case.
The district attorney rose and said he would enter a nolle prosequi
LIVINGSTON, Circuit Justice, observed that the defendant was entitled to a verdict of acquittal if he wished it.
The defendant’s counsel said he wished for a verdict.
LIVINGSTON, Circuit Justice, then addressed the jury thus: No evidence at all being adduced against the defendant, it will be your duty, without leaving your seats, to find a verdict of not guilty.
The jury immediately found a verdict accordingly.
Indictment, material allegations in, must be proved. See State v. Stebbins, 29 Conn. 471; U. S. v. Brown [Case No. 14,666]; citing case in text approvingly.