Glass v. United States

• Citation: 222 F. 773
• Decision Date: 03 May 1915
• Docket Number: 2485.
• Parties: GLASS v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

222 F. 773

GLASS v. UNITED STATES.

No. 2485.

United States Court of Appeals, Ninth Circuit.

May 3, 1915

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F. E. Hammond, of Seattle, Wash., for plaintiff in error.

Clay Allen, U.S. Atty., of Seattle, Wash., and G. P. Fishburne, Asst. U.S. Atty., of Tacoma, Wash., for the United States.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District judge.

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 be carried in the mail. Any person who shall knowingly deposit or send anything to be 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 be 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 cause to be deposited, or shall knowingly send or cause to be sent, anything to be conveyed or delivered by mail in violation of the provisions of this section, or shall knowingly deliver or cause to be 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 be 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.'

We see no merit in any of those contentions. Each of the counts is good under either of the sections of the statute...