MacDonald v. United States

• Decision Date: 22 March 1894
• Docket Number: 149.
• Citation: 63 F. 426
• Parties: MacDONALD et al. v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Seventh Circuit

63 F. 426

MacDONALD et al. v. UNITED STATES. ^[1]

No. 149.

United States Court of Appeals, Seventh Circuit.

March 22, 1894

Collins Goodrich, Darrow & Vincent, Barnum, Humphrey & Barnum, and Elisha Whittlesey, Jr., for plaintiffs in error.

Thomas E. Milchrist, U.S. Atty., and John P. Hand, Asst. U.S. Atty.

The appellants, George M. MacDonald, Francis M. Swearingen, and W. H. Stevenson, were indicted, with others, tried convicted, and sentenced, for sending through the mails matter concerning a lottery. Rev. St. U.S. Sec. 3894, as amended (26 Stat. 465). The indictment was returned October 14, 1893. The first count is general, and, formal parts omitted, charges that at Chicago the defendants 'unlawfully, did knowingly deposit and cause to be deposited in the post office of the United States there, and send and cause to be sent through the same, to be conveyed and delivered by mail, divers letters and circulars concerning a lottery, that is to say, ten letters and ten circulars, directed respectively to divers persons and addresses to the said grand jurors as yet unknown, and concerning a lottery in the same letters and circulars called the Guarantee Investment Company. ' The second count charges that the defendants, 'unlawfully, did knowingly deposit and cause to be deposited in the post office of the said United States there, and send and cause to be sent through the same post office, to be conveyed and delivered by mail of the said United States, a certain envelope, then and there bearing the address of Mr. J. J. McIntosh, Box 448, Chicago, Ill which said envelope then and there contained a certain pamphlet concerning a lottery in the same pamphlet mentioned, and purporting to give, amongst other things, the plan of said lottery; which said pamphlet was and is of the tenor following, that is to say. ' The pamphlet, as set out in the indictment, contains, with other things, the following matter:

'Copy of Bond.

'Know all men by these presents, that the Guaranty Investment Company of Nevada hereby promises to pay to-- or order, at its office in St. Louis, Mo., one thousand dollars, lawful money, at the time and on the conditions following to wit: This is one of a series of bonds of like tenor, numbered consecutively from No. 1 to the number borne by this bond, sold and issued to the purchasers of the maker hereof. The holder hereof has paid for this bond ten dollars, and by accepting it agrees to pay the maker, at its home office in St. Louis, Mo., on the first day of each consecutive month hereafter, an installment of one dollar and twenty-five cents until this bond matures. A failure for fifteen days to pay said installment subjects the holder or owner of the same to a fine of one dollar, which, together with the omitted installment, must be paid within the next fifteen days in order to reinstate the said bond. And if the same is not done within the said time this bond becomes null and void and of no effect, and the said holder forfeits all payments and fines assessed thereon to the fund for the payment of this series of bonds. It is hereby guarantied by the maker of this bond that one dollar of all the monthly installments and all fines paid on the bonds of this series shall constitute a trust fund for the payment of the bonds of this company in the order and manner following: The first bond paid shall be bond No. 1, the second bond paid shall be bond No. 5, the third bond paid shall be bond No. 2, the fourth bond paid shall be bond No. 10, and so on, reverting back to the first issued unforfeited unpaid bond in this series, and alternating with the multiple 5 until all the bonds issued are paid; and said fund shall be honestly guarded and applied to such purpose, and shall not be impaired, used, or diminished for any other purpose whatever; and this bond, if unforfeited, becomes and is due and payable immediately after there are sufficient funds in said trust fund to pay it, all subsisting and uncanceled bonds issued and numbered prior to this having been paid.

'In witness thereof, the officers have hereunto subscribed their names and affixed the seal of the company thereto at its home office in St. Louis, Mo., this-- day--,18-- .

--,President. -- Secretary.

'(Seal.)

"Table for Payment of Bonds.

"Copyrighted 1891, by J. G. Talbot.

1 then 5 12 then 60 23 then 115

2 then 10 13 then 65 24 then 120

3 then 15 14 then 70 then 125

4 then 20 then 75 26 then 130

then 25 16 then 80 27 then 135

6 then 30 17 then 85 28 then 140

7 then 35 18 then 90 29 then 145

8 then 40 19 then 95 then 150

9 then 45 then 100 31 then 155

then 50 21 then 105 32 then 160

11 then 55 22 then 110 33 then 165

-- 'And continuing until the multiple extends beyond the number of bonds sold, when payment will revert back and bonds will be paid in the numerical order, until by additional sales of bonds, the suspended multiple is reached, when that number will be paid, and this manner of payment shall continue until all unforfeited uncanceled bonds issued are paid.'

'Issuing of Bonds. We issue an investment bond on the following conditions: At the time application is made for a bond, the purchase price of $10.00 is paid to the agent taking the application, and a monthly installment of $1.25 is payable on the first day of the month following the date of said application. If the installment is not so paid when due, a fine of $1.00 is levied against the holder of such bond, unless the same is paid within fifteen days, and if not paid in the next fifteen days then the said bond will be canceled on the books of the company for nonpayment. The company pledges the bondholder that out of the monthly installment of $1.25 paid, that 25 cents only shall be used for the payment of bonds in the order of their issue as follows: As soon as there is $1,000 paid into said trust fund, it shall be paid to the person holding bond entitled thereto by the table issued by this company (providing said bond has not been canceled for nonpayment), as follows: Bond No. 1 will be entitled to the first $1,000 paid into the trust fund, and bond No. 5 to the second $1,000; bond No. 2 to the third $1,000; bond No. 10 to fourth $1,000, etc., etc.'

Thereupon the indictment proceeds: 'And which said envelope also then and there contained a certain other circular, entitled 'The Guarantee Investment Company, Incorporated; September Bulletin, 1893,' concerning the same lottery, and purporting to give, amongst other things, a list of the prizes drawn at divers drawings of the same lottery theretofore held; and which said envelope also then and there contained a certain other circular entitled 'Application to The Guarantee Investment Co., of Nevada, Mo.,' and concerning the same lottery, and which said envelope also then and there contained a certain letter concerning the same lottery, and of the tenor following, that is to say. ' Then follows a copy of the letter.

The third count charges that the defendants, 'unlawfully, did knowingly deposit and cause to be deposited in the post office of the United States there, and send and cause to be sent through the same post office, to be conveyed and delivered by mail of the said United States, a circular concerning an enterprise similar to so-called 'gift concerts,' offering prizes dependent upon lot and chance; that is to say, a circular directed to one George Houghton, at Downer's Grove, in the state of Illinois, by the direction and address following, to wit, 'Mr. George Houghton, Downer's Grove, Ill.,' and entitled and bearing on the outside of the cover thereof (amongst other things) the words 'The Guarantee Investment Company, Incorporated; September Bulletin,' and concerning an enterprise of that character in the same circular mentioned.'

A motion of the defendants to quash the first count of the indictment was overruled. During the progress of the trial, at the conclusion of the evidence for the government, the district attorney, over the objection and exception of the appellants, was allowed to file a bill of particulars with the first count of the indictment, to the effect that the circulars and letter and envelope mentioned in the second and third counts were or would be relied upon for the support of the first count.

Before WOODS and JENKINS, Circuit Judges, and BAKER, District Judge.

WOODS Circuit Judge (after stating the case).

The practical effect of the bill of particulars filed with the first count of the indictment was to confine the prosecution to the more specific charges contained in the second and third counts. If, therefore, there was error in overruling the motion to quash the first count, it became an immaterial and harmless error,-- as much so as if the count had been formally dismissed or withdrawn before the case was submitted to the jury.

The objection that the printed matter described in the indictment was admitted in evidence without previous proof of responsibility on the part of the defendants for the mailing of it is not supported by the record. When the offer was first made, it is true, the objection was interposed and overruled, as stated, and an exception taken; but no part of the matter was read to the jury until adequate proof had been made, by admissions and by the testimony of witnesses, that the mailing was done with the knowledge and by the authority of the defendants. In fact, when finally the evidence was given to the jury, the objection was not renewed, and no...