(concurring).
The indictment charges, and the evidence abundantly proves, that the appellants and others were operating a lottery just across the Mexican border, and advertising it in English and Spanish from a radio station by broadcasts in which the public was invited to send money by mail to them for-chances in the lottery. Much business was continuously obtained from the United States in response to the broadcasts, money being- sent in by mail and receipts for it sent back and cheeks to winners in letters posted in Mexico but addressed to persons in the Southern *709District of Texas. There is no room to doubt and no denial that there was an intention that the United States mails bo used in circumvention of 18 USCA § 336. The substantive counts under that section charging delivery of the letters containing receipts and cheeks fail because in each instance it was proved that the postmaster did not deliver them in the narrow sense that must properly be attributed to words in a criminal statute, but suspecting lottery inclosures he simply had the addressees to open the letters in his presence and read and return them.. But no such narrow interpretation is necessary in the conspiracy count, which charged as overt acts that the conspirators caused these letters to he delivered to the addressees, for the overt act need not bo in itself a crime. In a general sense the letters wore delivered, though momentarily, to the addressees. But if the accurate word to he used is “exhibited,” the variance is purely technical, occasioning the accused no surprise, and the real facts being well known and not in dispute there is no occasion for a new trial on that score. 28 USCA § 391. The real question is whether there is jurisdiction of the offense of conspiracy when everything that the indictment says was done happened while the conspirators were physically in Mexico. Whatever may have been true of common-law conspiracy, it seems to me that the federal statute introducing the overt act, as construed in the Hyde and Brown Cases in 225 U. S., to complete and perfect the crime with the result that the overt act for purposes of local jurisdiction carries constructive presence of all the conspirators where it was done, hut leaves jurisdiction also where the conspirators in fact conspired, requires that where venue rests on the latter basis it is not enough to show that some one conspirator came into the jurisdiction and did some unalloged thing. If that thing is the basis of jurisdiction, it ought to be alleged as an overt act, that accused persons who were never physically in tlie country may know and defend against it. But as to an overt act that is alleged, constructive presence thereby is justly sustained. That act completes the crime of conspiracy where it was done, no- matter where the conspiracy was previously made or carried on. It is authorized by all because it is to effect the object of the conspiracy. That it is done across an international line does not differentiate conspiracy from any other offense. If pistol or poison takes intended criminal effect from Mexico in the United States, the United States may punish if it can catch the criminals. The effect in the United States of the act done in Mexico draws to it jurisdiction to punish those who are responsible for it. It may properly be alleged as done in the United States. These mailed lottery receipts and cheeks are like bullets that hit their mark. In re Palliser, 136 U. S. 257, 10 S. Ct. 1034, 34 L. Ed. 514. They are clearly acts done in pursuance of this conspiracy and by authority of the conspirators. The radio communications in English wore also clearly solicitations to misuse the United States mail intended to reach the people of the United States, and, although more like poison gas than bullets, I think their intended effect when, accomplished in the United States constitutes an overt act there. Jurisdiction exists from the standpoint of international law. Venue in the Southern District of Texas exists under the Federal Constitution (Amendment 6), which requires prosecution where the crime was committed, not where the criminal was when he committed it. I concur in the affirmance.