Fitzsimmons v. United States

• Decision Date: 07 October 1907
• Docket Number: 1,340.
• Citation: 156 F. 477
• Parties: FITZSIMMONS v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

156 F. 477

FITZSIMMONS v. UNITED STATES.

No. 1,340.

United States Court of Appeals, Ninth Circuit.

October 7, 1907

The plaintiff in error was convicted of violation of the clause of section 3894 of the Revised Statutes (U.S. Comp. St. 1901 p. 2659), which provides that no letter, postal card, or circular concerning any lottery shall be carried in the mail or delivered at or through any postoffice or branch thereof. He was the president and a stockholder of a corporation organized under the laws of California, known as the 'Cumulative Credit Company.' The company issued certificates, the provisions of which were held by the court below to constitute a lottery. The provisions of the certificate material to the question here involved are as follows:

'This is to certify, that . . . is entitled to and agrees hereby to pay and contribute the amount of one dollar per week to the Cumulative Credit Company, a corporation, hereinafter designated as 'the Company' at its home office at 125 South Broadway, in the city of Los Angeles, California, for the purpose of creating an expense credit fund and a mutual benefit credit fund, for the uses and purpose hereinafter provided. Said payments to be made in each consecutive calendar week following the date hereof, until this certificate shall have been canceled in its regular order in pursuance of its conditions as herein stated.

'At the option of the owner hereof, the said weekly payments may be made in advance to cover a period of not to exceed five consecutive weeks.

'If for any reason the payment of the said one dollar per week to the company be not made by the owner hereof at the time and in the manner above provided for, this certificate shall be deemed to be delinquent, and all the rights of the owner hereof, hereunder, suspended; except, in the event of this certificate so becoming delinquent, if the owner hereof shall pay to the company, in addition to the one dollar per week provided to be paid herein, for the first week of each delinquency twenty-five cents, and for each succeeding week (not to exceed nine successive weeks) of such delinquency the sum of one dollar, then this certificate shall again become and be in full force and effect. But if said additional payments be not so made and the weekly payments as aforesaid shall become and remain delinquent for ten successive weeks, then this certificate shall immediately become null and void and of no effect, and all rights and privileges hereunder of the owner hereof shall immediately cease and determine.

'The company is hereby authorized and directed to set aside seventy-five per cent. of the sixth to the eightieth inclusive, of the above-mentioned payments and one hundred per cent. of all payments thereafter, and place the same in the mutual benefit credit fund, from which shall be paid the amounts due on this and other like certificates as they severally shall mature as hereinafter provided, as follows:

'This certificate shall be deemed to be matured when all like certificates of prior date and number shall have been matured and canceled, and at its maturity the owner hereof, upon presentation and surrender to the company of this certificate, shall be paid by the company, from the said mutual benefit credit fund, the sum of two dollars for each calendar week of the period from and including the calendar week following the date hereof, to and including the calendar week in which the same matures; provided that there shall be sufficient money in said mutual benefit credit fund available for that purpose to pay said amount, and provided further, that the amount so paid shall not exceed the sum of one hundred and sixty dollars; and upon payment of such sum due to the owner hereof this certificate shall be canceled by the company, and it is understood that the owner of this certificate shall be deemed at all times to be the person in whose name the same stands and appears upon the books of the company. The company is hereby authorized and directed to apply the balance of said payments, as hereinabove provided for, to the expense credit fund, to be used as the management may direct.'

Walter R. Bacon, for plaintiff in error.

Oscar Lawler, U.S. Atty.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge (after stating the facts as above).

The principal question here presented is whether the scheme referred to in the mail matter described in the indictment is a lottery. The plaintiff in error urges that it is not, that while the scheme may involve the element of chance, it lacks the element of prize which is essential to a lottery, and counsel for the plaintiff in error quotes definitions of 'lottery' which include the element of prize. But in law the term 'lottery' is of wide signification. In Horner v. United States, 147 U.S. 449, 13 Sup.Ct. 409, 37 L.Ed. 237, Mr. Justice Blatchford discussed various definitions of lottery, and among others approved that found in Worcester's Dictionary, in which it is defined to be 'a game of hazard in which small sums are ventured with the chance of obtaining a larger value, either in money or in other articles. ' That definition would include the scheme which is presented by the record in the present case. And not only is this so; but we think it clear that the element of prize is to be found in the scheme. In general, it may be said that anything of value offered as an inducement to participate in a scheme of chance is a prize. As applied to a scheme such as is disclosed in this case, a prize is any inequality in value resulting from chance in the distribution of money paid back to the contributors of the same. To constitute a prize, the inequality need not necessarily be great, and the element of prize may exist in a scheme so arranged as to return to each participant something of value,...