Glass v. United States

222 F. 773 | 9th Cir. | 1915

ROSS, Circuit Judge

(after stating the facts as above). Section 3894 of the Revised Statutes reads as follows:

“No letter or circular concerning (illegal) lotteries, so-called gift concerts, or other similar enterprises, offering prizes, or concerning schemes devised and intended to deceive and defraud the public for the purpose of obtaining money under false pretenses, shall he carried in the mail. Any person who shall knowingly deposit or send anything to he conveyed by mail in violation of this section shall be punishable by a fine of not more than five hundred dollars nor less than one hundred dollars, with costs of prosecution.”

And section 213 of the Criminal Code, so far as applicable, is in these words:

“No letter, package, postal card, or circular concerning any lottery, gift enterprise, or similar scheme offering prizes dependent in whole or in part upon lot or chance, * * * shall he deposited in or carried by the mails of the United States, or be delivered by any postmaster or letter carrier. Whoever shall knowingly deposit or canso to be deposited, or shall knowingly send or causo to be sent, anything to he conveyed or delivered by mail in violation of the provisions of this section, or shall knowingly deliver or cause to he delivered by mail anything herein forbidden to be carried by mail, shall be fined not more than one thousand dollars, or Imprisoned not more than two years, or both; and for any subsequent offense shall he imprisoned not more than five years. ♦ * * ”

It is contended on behalf of the plaintiff in error that counts 2 and 7 of the indictment are based upon section 3894 of the Revised Statutes, and that counts 3 and 4 are based on section 213 of the Criminal Code; that the first-mentioned section defines a misdemeanor and the last a felony; and that a misdemeanor and a felony cannot be included in the same indictment, and therefore the demurrer to the indictment should have been sustained; and further that each count is bad for duplicity in that, as the defendants thereto are charged with “depositing” and “causing to be deposited” the letters and circulars, “two separate crimes are charged”; that it is not charged that the defendants knew the contents of the letters or circulars; that it is not specifically charged that the defendants “knew the letters were concerning a scheme offering prizes,” and, as respects counts 3 and 4, that the scheme alleged is not a scheme “similar to a lottery or gift enterprise offering prizes dependent upon lot or chance,” nor is it alleged that the letters charged .to have been deposited “concerned a scheme similar to a lottery offering prizes.”

[1-3] We see no merit in any of those contentions. Each of the counts is good under either of the sections of the statute that have' been quoted. Whether section 3894 of the Revised Statutes is merged in section 213 of the Criminal Code (which latter is undoubtedly an enlargement of the provisions of the former statute) we are not called upon to decide in this case, for the reason that the punishment imposed upon the plaintiff in error is much less than that prescribed by the latter statute. It is apparent that each of the counts in question was treated in the court below as being based upon section 3894 of the Revised Statutes, as the plaintiff in error was only sentenced to imprisonment under each count for 60 days and a fine of $300, whereas the punishment prescribed by section 213 of the Criminal Code is much heavier. The plaintiff in error, therefore, has no right to complain of the extent of the punishment.

We say that each of the counts here in question is good under either of the sections of the statute quoted, for each of them alleges in effect that the instrument alleged to have been willfully, knowingly, unlawfully, and feloniously deposited by the defendants in the mail concerned a scheme dependent upon lot or chance carried on through a corporation organized and controlled by the defendants, and was intended to promote, aid, and further the said scheme, which scheme is specifically set out and shows upon its face that it was dependent upon lot or chance, and was designed and calculated to deceive and defraud the unwary in an endeavor to obtain money from them uqder false pretenses.

[4] All. of the counts here in question refer, as they properly may, to the scheme set out in the first count. Blitz v. United States, 153 U. S. 308, 14 Sup. Ct. 924, 38 L. Ed. 725; Crain v. United States, 162 U. S. 625, 16 Sup. Ct. 952, 40 L. Ed. 1097. The scheme so set out in effect offered prizes dependent upon lot or chance, for, as has been shown, the various lots and parcels into which the land was divided were of grossly unequal values. Yet each purchaser was to and did pay precisely the same amount, $130. Those at least who paid $130 each for the hundreds of lots that the evidence tended to show were only worth from $4 to $10 each doubtless had no more difficulty than have we in concluding that the. very few lots upon which houses were built were indeed prizes to those who were lucky enough to draw them.

[5] That all of the acts charged against the defendants to the in-dictmenf were connected together and concerned the same transaction, and were therefore of the same class of offenses, is clear, and that such acts and transactions may be included in the same indictment is expressly provided by statute; section 1024 of the Revised Statutes declaring :

“When there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, Instead of having several indictments the whole may bo joined in one indictment in separate counts; and if two or more indictments are found in such cases, the court may order them to be consolidated.”

The judgment is affirmed.