Horner v. United States

• Court: U.S. Supreme Court
• Writing for the Court: BLATCHFORD
• Citation: Horner v. United States, 147 U.S. 449, 13 S.Ct. 409, 37 L.Ed. 237 (1893)
• Decision Date: 30 January 1893
• Docket Number: No. 1,247,1,247
• Parties: HORNER v. UNITED STATES

147 U.S. 449

13 S.Ct. 409

37 L.Ed. 237

HORNER

v UNITED STATES.

No. 1,247.

January 30, 1893.

Alfred Taylor, F. S. Parker, and Herman Aaron, for plaintiff in error.

Asst. Atty. Gen. Maury, for the United States.

Mr. Justice BLATCHFORD delivered the opinion of the court.

This is an indictment found May 16, 1892, in the circuit court of the United States for the southern district of New York, founded on section 3894 of the Revised Statutes, as amended by Act Sept. 19, 1890, c. 908, (26 St. p. 465.) The section, as so amended, reads as follows: 'No letter, postal card, or circular concerning any lottery, so-called 'gift concert,' or other similar enterprise offering prizes dependent upon lot or chance, or concerning schemes devised for the purpose of obtaining money or property under false pretenses, and no list of the drawings at any lottery or similar scheme, and no lottery ticket or part thereof, and no check, draft, bill, money, postal note, or money order for the purchase of any ticket, tickets, or part thereof, or of any share or any chance in any such lottery or gift enterprise, shall be carried in the mail, or delivered at or through any post office or branch thereof, or by any letter carrier; nor shall any newspaper, circular, pamphlet, or publication of any kind containing any advertisement of any lottery, or gift enterprise of any kind offering prizes dependent upon lot or chance, or containing any list of prizes awarded at the drawings of any such lottery or gift enterprise, whether said list is of any part or of all of the drawing, be carried in the mail, or delivered by any postmaster or letter carrier. Any person who shall knowingly deposit or cause to be deposited, or who shall knowingly send or cause to be sent, anything to be conveyed or delivered by mail in violation of this section, or who shall knowingly cause to be delivered by mail anything herein forbidden to be carried by mail, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by a fine of not more than five hundred dollars, or by imprisonment for not more than one year, or by both such fine and imprisonment, for each offense. Any person violating any of the provisions of this section may be proceeded against by information or indictment, and tried and punished, either in the district at which the unlawful publication was mailed, or to which it is carried by mail for delivery according to the direction thereon, or at which it is caused to be delivered by mail to the person to whom it is addressed.'

Section 3894, as originally enacted in 1874, was an embodiment of section 149 of the act of June 8, 1872, c. 335, (17 St. p. 302,) and reads as follows:

'Sec. 3894. 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.' By Act July 12, 1876, c. 186, § 2, (19 St. p. 90,) section 3894 was amended by striking out the word 'illegal.'

The present indictment contains two counts. The first count alleges that Edward H. Horner, on December 29, 1891, did unlawfully and knowingly cause to be deposited in the post office at the city of New York, in the southern district of New York, a certain circular to be conveyed and delivered by mail, 'which said circular, in the contents thereof, hereinafter set forth, concerned a lottery, and which was then and there addressed to Joseph Ehrman, 70 Dearborn street, Chicago, Illinois, and was inclosed in an envelope, with postage thereon prepaid, and carried by mail, and which said circular contained, among other things, the following, to wit,' as is set forth in the margin, with the rest of said count.¹ The second count contains the same language as the first count, except that it alleg es that Horner deposited the circular in the post office.

The defendant pleaded not guilty, was tried, convicted of the charges contained in the indictment, and sentenced, on May 24, 1892, to pay a fine of $100. A bill of exceptions was made, which states that it was admitted on the record, by the counsel for both parties, that the bond in question in the case represented 100 florins, and was one of a series of bonds aggregating 40,000,000 gulden state loan, and that the bonds, of which the one offered in evidence was one, all represented loans made to the empire of Austria, and were issued for the purpose of raising revenue for the government, in order to defray governmental expenses, and carry on general state affairs.

After the prosecution had rested, the counsel for the defendant moved the court to direct the jury to acquit, on the following grounds: (1) The defendant is not shown by the evidence to have committed any offense against any statute law of the United States or against the common law. (2) The circular. with causing the mailing whereof the defendant is charged in this prosecution, is not a matter prohibited under section 3894 of the Revised Statutes. (3) Said circular does not concern or relate to a lottery, so-called 'gift concert,' or similar enterprise offering prizes depending upon lot or chance, or concerning schemes devised for obtaining money or property under false pretenses, nor does the same concern or relate to a lottery or similar scheme, or a lottery ticket, or part thereof. (4) That the bond or bonds mentioned in said circular which have been proved herein are not a lottery, so-called 'gift concert,' or similar enterprise offering prizes depending upon lot or chance, or concerning schemes devised for the purpose of obtaining money or property under false pretenses, nor are the same a lottery or similar scheme, or lottery ticket, or part thereof. (5) That the bond or bonds mentioned in the indictment, and proved upon the trial herein, are government bonds issued by the empire of Austria, and not within the language, meaning, or purview of the statute for any violation of which the said Edward H. Horner, the defendant, has been charged herein. The counsel for the defendant also moved that the prosecution be dismissed on the same grounds severally as above enumerated. The court denied each of those motions, and the counsel for the defendant took, and was duly allowed, exceptions to such denial.

On the 14th of July, 1892, a writ of error from the United States circuit court of appeals for the second circuit, to review the judgment of the circuit court, was allowed and sued out. In the circuit court of appeals it was assigned for error (1) that the matters charged in the indictment and proved upon the trial do not constitute a crime by the common law or under any statute of the United States; (2) that the circular with mailing or causing the mailing whereof the defendant is charged herein does not concern or relate to a lottery, so-called 'gift concert,' or similar enterprise offering prizes depending upon lot or chance, or concerning schemes devised for the purpose of obtaining money or property under false pretenses, nor does the same relate to a lottery or similar scheme, or a lottery ticket, or part thereof; (3) that the bond or bonds mentioned in said circular and proved upon the trial are government bonds issued by the empire of Austria, and not within the language, meaning, or purview of the statute with a violation of which the said Edward H. Horner has been charged herein; (4) that the court erred in not directing the jury to acquit the defendant upon the trial hereof; (5) that said court erred in not dismissing the prosecution herein.

The circuit court of appeals, on the 31st of October, 1892, pursuant to section 6 of the act of March 3, 1891, c. 517, (26 St. p. 828,) certified to this court the following questions or propositions of law, concerning which it desired the instructions of this court for its proper decision: '(1) Do the bonds mentioned and described in the first and second counts of the indictment herein represent a 'lottery or similar scheme,' within the meaning of section thirty-eight hundred and ninety-four of the Revised Statutes of the United States? (2) Is the circular described and set forth in the first and second counts of the indictment herein a 'circular concerning any lottery, so-called 'gift concert,' or other similar enterprise offering prizes dependent upon lot or chance,' within the meaning of section thirty-eight hundred and ninety-four of the Revised Statutes of the United States? (3) Does the circular mentioned and set forth in the first and second counts of the indictment herein constitute a 'list of the drawings at any lottery or similar scheme,' WITHIN THE MEANING OF SECTION THIRTY-EIght hundred and ninety-four of the Revised Statutes of the United States?'

It is contended on behalf of Horner that it is not a proper test to apply to the government bonds in question whether or not they have an element of chance in them; that the test ought to be whether they are a 'lottery or similar scheme;' that they are not a 'lottery or similar scheme;' and that all the questions certified should be answered in the negative.

It is urged that all the bonds are to be redeemed within 55 years from the date of their issue; that during the first year the Austrian government agrees to pay, as the minimum amount for any bond redeemed, 135 gulden; during the second year, 140 gulden; during the third year, 145 gulden; and so on, increasing 5 gulden in amount each year, until the minimum amount to be paid by the government on each bond redeemed is 200 gulden; that the primal object is only to raise money to carry on the government; that the money received by the government upon...