Stockton v. United States

• Decision Date: 15 April 1913
• Docket Number: 1,879.
• Citation: 205 F. 462
• Parties: STOCKTON v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

205 F. 462

STOCKTON v. UNITED STATES.

No. 1,879.

United States Court of Appeals, Seventh Circuit.

April 15, 1913

The plaintiff in error seeks review of a judgment of conviction and sentence herein upon an indictment charging violation of section 215 of the Penal Code.

The first count of the indictment charges the defendant with having 'devised a scheme and artifice to defraud a class of persons,' i.e., 'persons * * * whom the said Eugene M. Stockton intended would engage in playing games of chance for money and other valuable consideration, in the manner and by the means hereinafter in this count of the indictment set forth, with one Ike Nichols of Kingsville in the state of Texas,' which scheme and artifice to defraud was and is as follows:

'That said Eugene M. Stockton planned, devised and intended that the said Ike Nichols would purchase from him, said Eugene M. Stockton, and planned, devised and intended that he, the said Eugene M. Stockton, would sell and deliver to the said Ike Nichols for the purpose hereinafter mentioned, certain gambling devices, to wit, loaded dice and marked playing cards hereinafter more particularly described, for money to be paid therefor by the said Ike Nichols to the said Eugene M. Stockton, and the said Eugene M. Stockton planned devised and intended that the said Ike Nichols would engage the said persons intended to be defrauded in playing games of chance for money and other valuable consideration to be wagered thereon in the manner commonly known as gambling and the said Eugene M. Stockton planned, devised and intended that the said dice so to be sold as aforesaid would be constructed in such manner as to enable the said Ike Nichols to cause said dice in the playing of such games of chance with the said persons intended to be defrauded, as aforesaid, to fall on certain six sides of the said dice, to be determined in advance, as he, the said Eugene M. Stockton, then well knew, without intending that the said persons intended to be defrauded should have any knowledge that the said dice were so constructed as aforesaid; but on the contrary, he, the said Eugene M. Stockton, by and through the said Ike Nichols, intended to cause the said persons intended to be defrauded, to believe that the said dice were constructed in the same manner as ordinary dice are commonly constructed, to wit: without any mechanical or other device by which it could be determined in advance on which of the six sides the said dice should fall in the playing of the said games of chance.'

The indictment further described the marked playing cards, and contained similar averments respecting the plaintiff in error's intention that said Nichols would, in the use of such cards, have an unfair advantage over the persons intended to be defrauded; that the defendant 'so having devised the said scheme and artifice, in and for executing the said scheme and artifice, in and for attempting to do so, and in and for defrauding by and through the said scheme and artifice the said persons intended to be defrauded, unlawfully, willfully, fraudulently and feloniously, did place in the post office of the United States, at Chicago, and cause to be placed in the post office of the United States, to be sent and delivered by the said post office establishment of the said United States to said Ike Nichols at Kingsville in the state of Texas aforesaid, a certain printed catalogue' (not set forth in the indictment, but identified).

The second count is similar except in respect of the alleged gambling device contemplated to be sold and the person to whom the catalogue was mailed; also setting forth a letter alleged to have been written by the defendant, accompanying the catalogue, amplifying some of its contents, and containing discussion of the use of gambling devices.

The facts in the case are that the plaintiff in error, Eugene M. Stockton, in December, 1910, at the time of his indictment, was engaged in the business of manufacturing and selling magical goods, cards, dice, and kindred articles, including those specified in the indictment. Catalogues, describing the goods and giving prices of the articles manufactured and offered to be sold, were issued and sent through the United States mail to customers, and persons, firms, and individuals to whom such merchandise might be sold.

It is undisputed that catalogues were sent to the two persons named in the indictment; that they contained detailed descriptions of loaded dice, marked playing cards, and other gambling equipment referred to in the indictment.

C. S. O'Meara, of Chicago, Ill. (Bernhardt Frank and Edward Maher, both of Chicago, Ill., of counsel), for plaintiff in error.

James H. Wilkerson, of Chicago, Ill. (Henry W. Freeman and Walter P. Steffen, both of Chicago, Ill., of counsel), for the United States.

Before BAKER and KOHLSAAT, Circuit Judges, and GEIGER, District Judge.

GEIGER District Judge (after stating the facts as above).

Section 215 of the Penal Code, so far as pertinent to the question presented, is as follows:

'Whoever, having devised or intended to devise any scheme or artifice to defraud, or for obtaining * * * shall, for the purpose of executing such scheme or artifice or attempting so to do, place, or cause to be placed, any letter, postal card, package, writing, circular, pamphlet, or advertisement, whether addressed to any person residing within or outside the United States,' etc.

It will be observed that the ingredients which go to make up the offense under this section are:

(1) A scheme or artifice to defraud which the accused has devised, or is intending to devise.

(2) The use of the mails for the purpose of executing such scheme or artifice, or attempting to do so.

Assuming that marked cards and loaded dice may be-- or are, almost exclusively-- used to cheat or defraud in gambling, has the plaintiff in error in selling or offering to sell to one knowingly desiring to purchase these articles at an agreed price, devised or intended to devise a scheme or artifice to defraud? Does he, by mailing a catalogue accurately descriptive of these articles and their prices, execute or attempt to execute such scheme or artifice? Without attempting comprehensively to define the language of the act, it is apparent that each of the words 'devise,' 'scheme,' and 'artifice' embodies elements found in the other two. As understood in the law of crimes or torts, to 'devise' conveys the idea of being devious, contriving, disingenuous; a 'scheme,' machination, intrigue, or plan whose appearance differs from the reality; an 'artifice'; a trick, false pretense or token. But the degree to which this conception of the language of the statute is satisfied is never material, nor does the first essential ingredient of the offense exist, unless the scheme or artifice devised or intended to be devised is one to defraud.

We start, as we must, with the concession that, although marked cards and loaded dice may be used, as stated, they are none the less lawful subjects of commerce. They may be manufactured, sold, and purchased. If, therefore, upon purchase and sale, the parties thereto understand precisely the subject-matter and the seller proposes to and does give to the purchaser just what the latter wants-- even though it be gambling apparatus-- the transaction is an ordinary contract. The seller has neither devised nor executed a scheme or artifice. But the government, to sustain the indictment and conviction in the present case, seeks to impute or ascribe to the plaintiff in error the fraudulent intent of the purchaser or possessor of the gambling devices, and thereby charge a fraudulent scheme. Its claim is thus stated in the brief:

'That Stockton, the defendant below, intended that the persons to be defrauded would engage in playing games of chance for

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