John Francis v. United States 16, 17 1901

• Decision Date: 10 November 1902
• Docket Number: No. 80,80
• Citation: 188 U.S. 375,23 S.Ct. 334,47 L.Ed. 508
• Parties: JOHN FRANCIS, Anthony Hoff, and John Edgar, alias Peter Edgar, Retitioners , v. UNITED STATES. Argued October 16, 17, 1901. Ordered for reargument before full bench
• Court: U.S. Supreme Court

188 U.S. 375

23 S.Ct. 334

47 L.Ed. 508

JOHN FRANCIS, Anthony Hoff, and John Edgar, alias Peter Edgar, Retitioners,

v UNITED STATES.

No. 80.

Argued October 16, 17, 1901.

Ordered for reargument before full bench November 10, 1902.

Reargued December 15, 16, 1902.

Decided February 23, 1903.

Messrs. Miller Outcalt, George F. Edmunds, and Thomas F. Shay for petitioners on original argument.

Messrs. Miller Outcalt and John G. Carlisle for petitioners on reargument.

Assistant Attorney General Beck for respondent.

Mr. Justice Holmes delivered the opinion of the court:

This is an indictment under Rev. Stat. § 5440 (U. S. Comp. Stat. 1901, p. 3676), for conspiring to commit an offense against the United States. The offense which the defendants are alleged to have conspired to commit and to have committed is that of causing to be carried from one state to another, viz., from Kentucky to Ohio, five papers, certificates, and instruments, purporting to be and to represent chances, shares, and interests in the prizes thereafter to be awarded by lot in the drawings of a lottery, commonly know as the game of policy. Act of March 2, 1895, chap. 191 (28 Stat. at L. 963, U. S. Comp. Stat. 1901, p. 3178). It appears that the lottery in question had its headquarters in Ohio and agencies in different states. A purchaser, or person wishing to take a chance, went to one of these agencies, in this case in Kentucky, selected three or more numbers, wrote them on a slip, and handed the slip to the agent, in this case to the defendant Hoff, paying the price of the chance at the same time, and keeping a duplicate, which was the purchaser's voucher for his selection. The slip in this case was taken by the defendant Edgar to be carried to the principal office, where afterwards, in the regular course, there would be a drawing by the defendant Francis. If the purchaser's number should win, the prize would be sent to the agency and paid over. The carriage from one state to another, relied upon as the object of the conspiracy, and as the overt act in pursuance of the conspiracy, was the carriage by Edgar of slips delivered to Hoff, as above described. The case was sent to the jury by the district court, the defendants were found guilty, and the judgment against them was affirmed by the circuit court of appeals. Reilley v. United States, 46 C. C. A. 25, 106 Fed. 896. The case then was brought here on certiorari.

An exception was taken at every step of the trial in the hope that some shot might hit the mark. We entirely agree with the circuit court of appeals in its unfavorable comments on the practice. But, little attention as most of the objections made deserve, they at least succeeded in raising the broad questions whether the act of 1895 is constitutional, and whether the offense proved is within it. The former is disposed of by the case of Champion v. Ames, 188 U. S. 321, ante, 321, 23 Sup. Ct. Rep. 321. The latter remains, and thus far seems to us not to have received quite sufficient notice.

The game was played by mixing seventy-eight consecutive numbers and drawing out twelve after all the purchases for the game had been reported. If the three on any slip corresponded in number and order with three drawn out, the purchaser won. The purpose of bringing in the slips to headquarters was that all purchases should be known there before the drawing, and thus swindling by agents of the lottery made impossible. It is said by the circuit court of appeals that the successful slips were returned with the prizes. If this is correct we do not perceive that it materially affects the case. The arrangement, whatever it was, was for the convenience and safety of those who managed this lottery, and was in no way essential to the interests of the person making the purchase or bet. The daily report of the result of the drawings to Hoff, with whom he dealt, and the forwarding of the prize, if drawn, filled all his needs. It would seem from the evidence, as the government contended,—certainly the contrary does not appear and was not argued,—that Hoff and Edgar, the carrier, were agents of the lottery company. Thus the slips were at home, as between the purchaser and the lottery, when put into Hoff's hands. They had reached their final destination in point of law, and their later movements were internal circulation within the sphere of the lottery company's possession. Therefore the question is suggested whether the carriage of a paper of any sort by its owner or the owner's servant, properly so called, with no view of a later change of possession, can be commerce, even when the carriage is in aid of some business or traffic. The case is different from one where, the carriage being done by an independent carrier, it is commerce merely by reason of the business of carriage.

The question just put need not be answered in this case. For on another ground we are of opinion that there was no evidence of an offense within the meaning of the act of 1895. The assumption has been that the slips carried from Kentucky to Ohio were papers purporting to be or represent a ticket or interest in a lottery. But in our opinion these papers did not purport to be or do either. A ticket, of course, is a thing which is the holder's means of making good his rights. The essence of it is that it is in the hands of the other party to the contract with the lottery as a document of title. It seems to us quite plain that the alternative instrument mentioned by the statute, viz., a paper representing an interest in a lottery, equally is a document of title to the purchaser and holder,—the thing by holding which he makes good his right to a chance in the game. But the slips transported, as we have pointed out, were not the purchasers' documents. It is true that they corresponded in contents, and so in one sense represented or depicted the purchasers' interests. But 'represent' in the statute means, as we already have said in other words, represent to the purchaser. It means stand as the representative of title to the indicated thing, and that these slips did not do. The function of the slips might have been performed by descriptions in a book, or by memory, if the whole lottery business had been done by one man. They as little represented the purchaser's chances as the stubs in a check book represent the sums coming to the payees of the checks.

We assume, for purposes of decision, that the papers kept by the purchasers were tickets, or did represent an interest in a lottery. But those papers did not leave Kentucky. There was no conspiracy that they should. We need not consider whether, if it had been necessary to take them to Ohio in order to secure the purchaser's rights, the lottery keepers could be said to conspire to cause them to be carried there, when the carriage would be in an interest adverse to theirs, and they would be better off and presumably glad if the papers never were presented. See Com. v. Peasles, 177 Mass. 267, 271, 59 N. E. 55; Graves v. Johnson, 179 Mass. 53, 58, 60 N. E. 383.

The judgment of the Circuit Court of Appeals is reversed; the judgment of the District Court is also reversed, and the cause remanded to that court, with directions to set aside the verdict and grant a new trial.

Mr. Justice Harlan dissenting:

This is a criminal prosecution based upon the 1st section of the act of Congress of March 2d, 1895, chap. 191, entitled 'An Act for the Suppression of Lottery Traffic through National and Interstate Commerce and the Postal Service, Subject to the Jurisdiction and Laws of the United States.'

That section reads: '§ 1. That any person who shall cause to be brought within the United States from abroad, for the purpose of disposing of the same or deposited in or carried by the mails of the United States, or carried from one state to another in the United States, any paper, certificate, or instrument purporting to be or represent a ticket, chance, share, or interest in or dependent upon the event of a lottery, socalled gift concert, or similar enterprise offering prizes dependent upon lot or chance, or shall cause any advertisement of such lottery, so-called gift concert, or similar enterprises offering prizes dependent upon lot or chance, to be brought into the United States, or deposited in or carried by the mails of the United States, or transferred from one state to another in the same, shall be punishable in the first offense by imprisonment for not more than two years or by a fine of not more than $1,000, or both, and in the second and after offenses by such imprisonment only.' 28 Stat. at L. 963, U. S. Comp. Stat. 1901, p. 3178.

The indictment charges a conspiracy to commit the offense denounced by that section.

Judge Severens, delivering the judgment of the circuit court of appeals, thus stated, and I think accurately, the result of certain evidence on the part of the government: 'Upon the trial the government offered evidence tending to prove that the respondents adopted a scheme of lottery business called by them 'policy,' which they subsequently carried into operation, of the character following: The principal office for the transaction of the business was located in a building in Cincinnati, Ohio. The place where the drawings of numbers from a wheel were made was located in another building or room adjoining the principal office and connected with it by a private way. In various places in that city and elsewhere, in Ohio and other states, one, at least, being in Newport, Kentucky, they had offices or stations at which the patrons purchased tickets or chances in the drawings to be thereafter made in Cincinnati, at the place mentioned. Successive numbers from one to seventy-eight, inclusive, were each day put into the wheel, and at each drawing twelve...