Appeal from the District Court of the United States for the Southern District of New York.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
The basis of the demurrer is that the tickets which the government alleged the defendant casued Finn to receive were tickets "which had theretofore been transported" in interstate commerce, and that they did not themselves purport to be lottery tickets as the indictment with its facsimile was claimed to show on its face.
The statute (18 USCA § 387) on which the first count was drawn only applies in so far as this appeal is concerned to tickets "purporting to be or to represent a ticket, chance, share, or interest in or dependent upon the event of a lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot or chance. * * *" In overruling the demurrer, the judge indicated his view that the purport of the ticket could be shown by extrinsic evidence. He cited Reilley v. United States (C.C.A.) 106 F. 896, in support of this conclusion, with the further suggestion that Francis v. United States, 188 U.S. 375, 23 S. Ct. 334, 47 L. Ed. 508, might be considered in accord, though Reilley v. United States was reversed in the Francis Case, since nothing was then said in the majority opinion in disapproval of the proposition. As the Reilley Case was reversed, we do not understand that failure to mention any point decided below can be though to mean approval of the ruling. Mutual Life Ins. Co. v. Hill, 193 U.S. 551, 24 S. Ct. 538, 48 L. Ed. 788; Southern Ry. Co. v. Commonwealth of Kentucky, 284 U.S. 338, 52 S. Ct. 160, 76 L. Ed. 327. We accordingly feel free to decide the question as one still open.
Little light can be shed upon the intention of Congress in using the word "purporting" in this statute from its history or by comparing it with the statute relating to the use of the mails. 18 USCA § 336. Nor does it appear to be needed. Purporting means "to have the appearance or to convey the impression of being, meaning, or signifying (some particular thing)." Webster's International Dictionary. These tickets themselves gave all the evidence of what they had the appearance of being and so of what they purported to be. An inspection of the tickets disclosed what they purported to be provided the person who saw them knew what their appearance signified. They were the best evidence of their own appearance, and, as an exact reproduction of one of the tickets, which disclosed the appearance of all, was included in the indictment, no evidence to show how they looked, other than the tickets themselves, or secondary evidence of that after a proper foundation was laid for it, could be resorted to in support of the indictment. However, a thing has the appearance of being some particular thing only to a person who knows how that particular thing looks. For instance, a person who knows how a lottery ticket looks could tell by looking at something else whether it purported to be a lottery ticket. But not so one who had no knowledge of the appearance of a lottery ticket. So it cannot be said broadly that no evidence other than that of a given paper, certificate, or instrument itself may ever be used to prove what it purports to be. With this limitation, however, these tickets themselves disclosed what they purported to be, and they came within the purview of the statute involved in this case only if such a ticket as shown by the indictment appeared to be a lottery ticket on its face.
In our judgment the ticket did under this construction of the statute come within its terms. It was well adapted for such use. The language of the statute is not wholly restrictive as the appellants seem to think, but rather by making appearance the test might in some instances apply to what was not a lottery ticket in fact. The absence of any language on the ticket to indicate that the prizes were to be awarded by lot or chance is not conclusive. But the absence of anything to indicate that they could or would be awarded in any way other than by lot or chance, coupled with the ease with which their construction permitted this method to be used, afforded all that was necessary to give them the appearance which the statute covered.
Another ground of the demurrer strickes directly at an element essential to federal jurisdiction and is fatal to the first count. The defendants were alleged to have caused Finn to receive the tickets which had theretofore been transported in interstate commerce. True it is that the use of the word "theretofore" was unfortunate as the District Judge remarked. He thought that 18 USCA § 556, relating to defects and imperfections in an indictment in matters of form, disposed of the matter. But that does not answer the demurrer in this respect. If the words of the indictment are given their usual meaning, the interstate carriage of the tickets had ended before the defendants caused Finn to receive them, and it might have ended an indefinite time before. This statute must be strictly construed. France v. United States, 164 U.S. 676, 17 S. Ct. 219, 41 L. Ed. 595. It is the authority of Congress to regulate interstate commerce which makes such a statute valid. Champion v. Ames, 188 U.S. 321, 23 S. Ct. 321, 47 L. Ed. 492. After the tickets, though they had been sent from Pennsylvania to New York, were received from the interstate carriage in New York, they were no longer in interstate commerce. Sonneborn Bros. v. Cureton, 262 U.S. 507, 43 S. Ct. 643, 67 L. Ed. 1095. And the allegations that they had theretofore been so sent when the defendants caused Finn to receive them means that interstate transportation of them was, as of that time, a thing of the past. It had ended. If a crime was alleged, proof that would show that the defendants caused Finn to receive the tickets after their delivery in interstate commerce to the original consignee and they had passed into the custody and possession of any number of persons within the state to which they had been shipped would have been sufficient to prove it. That is, proof of consummated interstate carriage however remote from their receipt by Finn coupled with proof that the defendants caused Finn to receive them at any time after such carriage would be enough. But no crime was alleged, since it was not only consistent with the averment, but it was the ordinary import of the language used, that the interstate shipment had ended before Finn received the tickets. An essential fact, viz. that the defendants caused Finn to receive the tickets in interstate commerce, was lacking. To withstand the demurrer, the indictment had to allege all the facts necessary to be proved to constitute the offense. United States v. Simmons, 96 U.S. 361, 24 L. Ed. 819; Evans v. United States, 153 U.S. 584, 14 S. Ct. 934, 38 L. Ed. 830. And as this was a matter of substance and not of form, the verdict did not cure the defect, United States v. Hess, 124 U.S. 483, 8 S. Ct. 571, 31 L. Ed. 516; United States v. Carll, 105 U.S. 611, 26 L. Ed. 1135, and defendant McGuire could raise the point as he did by his motion in arrest of judgment, United States v. Simmons, supra. The first count must be held bad as to all defendants.
There is no such disability as to the second count charging conspiracy. There are allegations that the defendants conspired to cause the tickets to be deposited for interstate carriage, as well as to be received, and allegations of acts done within the jurisdiction in furtherance of the conspirators' agreement. The verdict was general and will stand, since one count is good. Evans v. United States, 153 U.S. 584, 14 S. Ct. 934, 38 L. Ed. 830; Claassen v. United States, 142 U.S. 140, 12 S. Ct. 169, 35 L. Ed. 966.
The exceptions relating to the plea in abatement need not detain us. As we have held the first count bad, they need be noticed only as to the second count. There was no proof or offer of proof of any facts to show any want of evidence produced before the grand jury in support of the second count except what is claimed to have been an offer to prove by the testimony of an assistant district attorney who was called as a witness by the defendants that "there was no competent proof of any kind or nature before the grand jury as to the commission of any overt act or acts specified in the first and second count of the indictment." It would be going too far to believe that this offer embraced more than a legal conclusion, more than the assurance, obviously rather surprising, that the witness was ready to testify, if permitted, that in his opinion there was no competent evidence before the grand jury as to the commission of any of the overt acts specified in the second count. If this were enough, an investigation as to the competency of the evidence before a grand jury could be compelled by a respondent even where there was no suggestion of any misconduct on the part of jurors or irregularity in the panel. It would require a disclosure of the evidence, if the government can thus be required to justify the indictment, and in effect a trial of the grand jury before a respondent could be tried. It would provide a respondent in advance with much, if not all, of the government's case. Without discussing what power the court has, should there be real reason to believe that improper conduct has entered into the finding of an indictment, to inquire into the nature of the evidence before the grand jury, the assertion of the respondent that the evidence is insufficient will not avail. See Kastel v. United States (C.C.A.) 23 F.2d 156; Murdick v. United States (C.C.A.) 15 F.2d 965; McKinney v. United States (C.C.A.) 199 F. 25. The best evidence on this subject would have been the minutes of the grand jury. But they were not offered, and there is nothing to show that these respondents either knew what they contained or could have obtained them to offer in evidence. U.S. v. Violon (C.C.) 173 F. 501; U.S. v. Rubin (D.C.) 214 F. 507; U.S. v. Perlman (D.C.) 247 F. 158; U.S. v. Gouled (D.C.) 253 F. 242. Nor can it be thought that any different legal situation arises when the mere assertion that the evidence before the grand jury was insufficient takes the form of an offer to prove that conclusion in support of a plea in abatement. United States v. Morse (D.C.) 292 F. 273, 277, 278. Consequently, it was not reversible error to exclude the offer made.
Confining ourselves now to the second count, we are convinced that a conspiracy to cause what purported to be lottery tickets to be transported in interstate commerce by an express company was alleged and proved as to all these appellants. There was ample evidence from which the jury could find that McGuire proposed the scheme to Mann, that Mann approved, and that Hering conferred with Mann and acquiesced. Compare Rumely v. United States (C.C.A.) 293 F. 532. All three put their money and credit behind the plan, and, when the program had been carried out in the way the jury was justified in finding from the evidence these respondents had agreed it would be, they divided the profits among themselves.
An overt act done within this jurisdiction in furtherance of the conspiracy to transport these tickets in interstate commerce was alleged and proved in respect to the tickets received by Finn. Whether or not the tickets were in interstate commerce when they caused him to receive them, these defendants caused those tickets, in furtherance of their conspiracy, to be transported in interstate commerce within the Southern district of New York to get them to him. The overt act in so doing was to attain that object of their conspiracy which was criminal in its nature under federal law, and its allegation and proof was sufficient to bring the offense within the classes of conspiracies covered by 18 USCA § 88. Lonabaugh v. United States (C.C.A.) 179 F. 476.
It is claimed that it was error to admit evidence to show how the scheme was carried out right down to the time the drawing was had on the boat and the respondents divided the proceeds. Of course, the offense charged is not conspiring to conduct a lottery, for we are not concerned with what might be unlawful only under state laws. However, the forbidden use of interstate carriage of what purported to be lottery tickets became fruitful to the respondents only as it made the lottery possible. Evidence to show how their scheme was of benefit to them disclosed the motive for their entering into it, and was admissible for that purpose. United States v. Noelke (C.C.) 1 F. 426. Moreover, although we have here only what might be called a conspiracy within a conspiracy to conduct a lottery, the conspiracy before us did not end until the money the conspirators realized, at least in part from it, was divided among them. What the conspirators did and caused to be done to fulfill the purpose of the conspiracy with which we are now dealing was properly shown. Shea v. United States (C.C.A.) 251 F. 440; Lew Moy v. U.S. (C.C.A.) 237 F. 50; Ferris v. United States (C.C.A.) 40 F.2d 837. Thus it was not error to show what was done with the tickets after they were transported according to the agreement of the conspirators. Whether they were strictly lottery tickets before they were actually sold goes to what they were in fact when transported, and leaves the proof that the conspirators agreed to cause to be transported, in violation of the statute, what purported to be lottery tickets still abundantly shown by the evidence.
Granted that after these tickets were sold to the public it would be unlawful to conspire to transport in interstate commerce only what purported to be that part which was kept by the purchaser, Francis v. United States, supra, it does not follow that it was not unlawful to conspire to transport from state to state the whole of these tickets before they were sold to the ultimate holders. Indeed, the tickets involved in The Lottery Case (Champion v. Ames) 188 U.S. 321, 23 S. Ct. 321, 47 L. Ed. 492, were alleged to have been "caused to be carried, as aforesaid, for the purpose of disposing of the same," and in the opinion at page 353 of 188 U.S., 23 S. Ct. 321, 326, it is said, "These tickets were the subject of traffic; they could have been sold; and the holder was assured that the company would pay to him the amount of the prize drawn." Moreover, in Brooks v. United States, 267 U.S. 433, 45 S. Ct. 345, 346, 69 L. Ed. 699, 37 A.L.R. 1407, the Chief Justice took occasion to observe, "In the Lottery Case, 188 U.S. 321, 23 S. Ct. 321, 47 L. Ed. 492, it was held that Congress might pass a law punishing the transmission of lottery tickets from one state to another, in order to prevent the carriage of those tickets to be sold in other states and thus demoralize, through a spread of the gambling habit, individuals ...