Reilley v. United States

• Decision Date: 12 February 1901
• Docket Number: 849.
• Citation: 106 F. 896
• Parties: REILLEY et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

106 F. 896

REILLEY et al. v. UNITED STATES.

No. 849.

United States Court of Appeals, Sixth Circuit.

February 12, 1901

Thomas Shay, for plaintiffs in error.

Sherman T. McPherson, for the United States.

Before LURTON, DAY, and SEVERENS, Circuit Judges.

SEVERENS Circuit Judge.

The above-named plaintiffs in error were convicted in the court below of the offense of having conspired to commit an offense against the United States. The statute which creates the offense of conspiracy and makes it punishable is section 5440 of the Revised Statutes, as amended by the act of May 17 1879, which is as follows:

'If two or more persons conspire either to commit any offense against the United States or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy all the parties to such conspiracy shall be liable to a penalty of not more than ten thousand dollars, or to imprisonment of not more than two years, or to both fine and imprisonment, in the discretion of the court.'

The offense which the plaintiffs in error are charged with having conspired to commit is defined by the first section of the act passed March 2, 1895, entitled 'An act for the suppression of lottery traffic through national and interstate commerce and postal service subject to the jurisdiction and laws of the United States. ' This section reads as follows:

'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, so-called 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 enterprise, offering prizes dependent upon lot or chance, to be brought into the United States, or deposited in or carried 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 one thousand dollars, or both, and in the second and after offenses by such imprisonment only.'

We have divided the clauses of this section in such manner as to indicate what we conceive to be the true construction thereof, as will be hereafter explained. The indictment charges the respondents with having conspired within the district--

'To cause to be carried from one state to another in the United States, to wit, from the city of Newport, in the state of Kentucky, to the city of Cincinnati, in the state of Ohio, papers, certificates, and instruments purporting to be and to represent, as they then and there well knew, tickets, chances, shares, and interests in and dependent upon the event of a lottery and similar enterprise offering prizes dependent upon lot and chance; that is to say, to cause to be carried as aforesaid papers, certificates, and instruments purporting to be and to represent the chances, shares, and interests in the prizes which, by lot and chance, might be awarded to persons (to these grand jurors unknown) who might select certain numbers which by lot and chance should be included in twelve numbers drawn and selected as hereinafter stated, at certain drawings in lottery, which was an enterprise offering prizes dependent upon lot and chance, and commonly known as 'policy,' and consisted, as they then and there well knew, in the drawing and selection by lot and chance, at stated intervals, of twelve of the numbers from one to seventy-eight, inclusive, and of awarding prizes in various amounts (to these grand jurors unknown) to those who prior to the time of any one of said drawings and selections, upon the payment of a small sum of money, may have selected various combinations of numbers included in the said twelve numbers thereafter drawn and selected by lot and chance as aforesaid.'

And it is further charged that:

'In pursuance of the conspiracy, and to effect the object thereof, being for the purpose of causing to be carried from one state into another in the United States, to wit, from the state of Kentucky to the state of Ohio, as aforesaid, papers, certificates, and instruments purporting to be and to represent tickets, chances, shares, and interests in and dependent upon the event of a lottery and similar enterprise offering prizes dependent upon lot and chance, as aforesaid, as they then and there well knew, said Anthony Hoff, John Edgar (alias Peter Edgar), Charles W. Reilley, and John Francis did then and there, on said date aforesaid, in the county, state, circuit, division, and district aforesaid, unlawfully, knowingly, and feloniously cause to be carried from one state to another in the United States, to wit, from Newport, in the state of Kentucky, to Cincinnati, in the state of Ohio, five certain papers, certificates, and instruments purporting to be and to represent chances, shares, and interests in the prizes to be awarded by lot and chance in the drawings to be made thereafter in said certain lottery, commonly known as the game of 'policy,' which said papers, certificates, and instruments were in the words and figures, following, to wit: (Here follow certain blocks of figures and letters.)'

And thereupon the indictment proceeds:

'Said papers, certificates, and instruments, and the letters and figures thereon, purported and represented to be and were tickets, chances, shares, and interests in and dependent upon the event of a lottery and similar enterprise offering prizes dependent upon lot and chance, and were and did represent various combinations of numbers selected by one H. T. Harrison, and other players and persons to the grand jurors unknown, as and being their interest and chance in a proposed drawing of said lottery, in accordance with the general scheme and plan hereinbefore described,-- contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America.'

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 the city and elsewhere, in Ohio and other states, one, at least, being in Newport, Ky., 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 1 to 78, inclusive, were each day put into the wheel, and at each drawing 12 numbers were taken out. A list of these 12 numbers was taken into the principal office and there recorded. Several hours in the day before these drawings respectively took place, the patrons purchased chances at the suboffices or stations from an agent of the respondents, or from one of the latter, in charge at that place. In this instance the purchase was made of the respondent Hoff at the Newport office. The purchaser (Harrison, in this instance) chose 3 of the numbers from 1 to 78, inclusive, and wrote them upon a slip of paper, of which, according to the method of doing business, he kept a duplicate. He handed his list of numbers, with figures to denote the sum paid, upon a slip of paper, and the money to pay for his chance, to the person in charge, to be transmitted to the principal office in Cincinnati, by the 'carrier,' who would call to take them up. When these slips and the moneys were all brought into the principal office, the drawing above mentioned took place. If the 3 numbers on the slip were of the 12 drawn from the wheel, the purchaser would win the prize, $200, when the game (of which there were several forms, was played on the basis above stated. If not, he lost. A report of the drawings was sent back to the station from which the slip came, and, if any purchaser had made a 'hit,' his slip would be returned with the prize to be there delivered to him. Of the respondents, Reilley was in charge of the principal office, Francis of the drawings, Hoff of the station in Newport, as already stated, and Edgar was the carrier. The slip of paper taken by the carrier represented the interest of the purchaser of the chance, and, although containing figures only, it had a definite meaning, and was understood by all the parties concerned. It was the transportation of some of such lists, one being that of Harrison, from Newport, Ky., to Cincinnati, Ohio, with knowledge of their character, that constituted the overt act done in pursuance of the conspiracy.

The first question to be resolved arises upon the contention made by counsel for plaintiffs in error, that upon the due construction of the first section of the act of March 2, 1895, the successive clauses enumerating the several cases in which the offense may be committed all depend upon a condition which is supposed to exist in consequence of the words first occurring, that the paper, certificate, etc., has been brought into the United States from abroad for the purpose of disposing of the same. It is argued that this must be so for the reason, and this is the principal ground of the argument, that by the second section of the act there is an express provision that no former statute against the...