United States v. Conrad

• Citation: 59 F. 458
• Parties: UNITED STATES v. CONRAD et al.
• Decision Date: 11 January 1894
• Court: U.S. Court of Appeals — Fourth Circuit

59 F. 458

UNITED STATES v. CONRAD et al.

United States Circuit Court, D. West Virginia.

January 11, 1894

George C. Sturgiss, U.S. Atty.

J. D Rouse and J. B. Jackson, for defendants.

GOFF Circuit Judge.

The defendants are charged with violating the provisions of section 3894 of the Revised Statutes of the United States, as amended by the act of congress approved September 19, 1890 (26 Stat. 465, c. 908,) called the 'Anti-Lottery Act,' which 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.'

The indictment contains six counts, in which the offenses charged are set forth in different ways. The first count charges:

That the defendants, on the ___ day of July, A. D. 1891, at the city of New Orleans, in the state of Louisiana, did unlawfully and knowingly deposit and place in the post office of the United States at the city of New Orleans, in the state of Louisiana, with intent that the same should be sent by the postmaster at the city of New Orleans and conveyed by the mail of the United States to the city of Charleston, in the district of West Virginia, a certain circular concerning a lottery, which circular * * * was intended by said defendants to promote and aid the carrying on the business of said lottery, * * * and which was directed to 'Lewis Loewenstein, Charleston, W. Va.,' in a wrapper duly stamped, and which was carried and conveyed by mail to the post office of the United States at Charleston, in the district of West Virginia, for delivery according to the directions thereon, and was intended by said defendants to be so carried and conveyed by said mail to Charleston, in the district of West Virginia, for delivery, defendants well knowing said circular to be one concerning a lottery, contrary, etc.

The second count charges:

That defendants, on the ___ day of July, in the year of our Lord one thousand eight hundred and ninety-one, at the city of New Orleans, in the state of Louisiana, did unlawfully and knowingly cause to be deposited and placed in the mail of the United States, at the post office of the United States at the city of New Orleans, in the state of Louisiana, with intent that the same should be sent and conveyed by mail to the city of Charleston, in the district of West Virginia, a certain circular concerning a lottery, * * * intended to aid in the business of said lottery, * * * which circular was inclosed in an envelope, duly stamped, and directed to Lewis Loewenstein, Charleston, W. Va., and which was carried and conveyed by the mail of the United States, to the post office at Charleston, in the district of West Virginia, for delivery according to the said directions thereon, * * * contrary, etc.

The third count charges:

That defendants, on the ___ day of July, A. D. 1891, at the city of New Orleans, in the state of Louisiana, did unlawfully and knowingly send, to be conveyed and delivered by the mail of the United States, by depositing in the post office of the United States, at the city of New Orleans, in the state of Louisiana, a certain circular concerning a lottery, and with which circular, in the same inclosure and wrapper, when so deposited, was inclosed a certain envelope and cover, intended to be used to convey by express money to pay for tickets and chance in the drawings of said lottery, and which circular and envelope were intended by defendants to promote and aid in the setting up and carrying on of the business of said lottery, * * * and were inclosed together in a wrapper, and stamped with the United States postage, * * * and directed and addressed as follows: 'Lewis Loewenstein, Charleston, W. Va.,' and which were carried and conveyed by the mail of the United States to the post office of the United States at Charleston, in the district of West Virginia, for delivery according to the said direction thereon, and were intended by said defendants to be so carried and conveyed by mail to Charleston, in the district of West Virginia, for delivery to said * * *, contrary, etc.

The fourth count sets forth:

That the defendants, on the ___ day of July, A. D. 1891, at the city of New Orleans, in the state of Louisiana, did unlawfully and knowingly cause to be sent, to be conveyed and delivered by the mail of the United States, by depositing in the post office of the United States at New Orleans, in the state of Louisiana, a certain circular concerning a lottery, * * * intended and designed by defendants to promote and aid in the setting up and carrying on the business of said lottery, * * * and which was inclosed in a wrapper duly stamped, * * * and directed and addressed as follows: 'Lewis Loewenstein, Charleston, W. Va.;' and which was carried and conveyed by the mail of the United States to the post office at Charleston, in the district of West Virginia, for delivery according to said directions thereon, with intent * * *, contrary, etc.

The fifth count alleges:

That defendants, on the ___ day of July, in the year of our Lord one thousand eight hundred and ninety-one, did unlawfully and knowingly deposit and place in the mail of the United States, at the post office of the United States at the city of New Orleans, a certain circular, pamphlet, and publication concerning a lottery, * * * which circular, pamphlet, and publication contained and constituted an advertisement of and for a certain lottery, sometimes called the Louisiana State Lottery Company, and sometimes called the Louisiana Lottery Company, and which were intended and designed to promote and aid in the conducting and carrying on the business of said lottery, * * * and which were then and there inclosed in a wrapper, and directed and addressed as follows, that is to say, 'Lewis Loewenstein, Charleston, W. Va.,' and stamped * * *, and were, after they were so deposited, carried by said mail to the post office at Charleston in the district of West Virginia, and were intended to be so carried for delivery to said Lewis Loewenstein, to advertise and aid said lottery, * * * contrary, etc.

It is charged in the sixth count:

That defendants, on the ___ day of July, in the year of our Lord one thousand eight hundred and ninety-one, did unlawfully and knowingly place and cause to be placed in the mail of the United States at New Orleans a certain circular, pamphlet, and publication concerning a lottery, * * * sometimes called the Louisiana State Lottery Company, * * * which were intended to promote and aid the business of said lottery, * * * and which were inclosed in a wrapper, duly stamped, and directed to Lewis Loewenstein, Charleston, W. Va., and which were, after the same was so placed and deposited, carried by said mail to the post office at Charleston, in the district of West Virginia, and were intended to be so carried by said mail for delivery to said Lewis Loewenstein, * * * contrary, etc.

In each count the circular, pamphlet, and publication referred to is set out in full, but the description of the same and the recitals I have given are sufficient, I think, for all purposes connected with the questions now to be disposed of. The defendants demur to the indictment and to each count thereof. It is insisted that the indictment is defective because that no day certain is alleged in any of the counts on which the offenses charged were committed; that the allegations that 'defendants did, on the ___ day of July, in the year of our Lord one thousand eight hundred and ninety-one,' etc., are equivalent to no dates being given. In this case I do not think so, as time is not of the essence of the offense charged. Any day in July, A. D. 1891, was prior to the finding of the indictment, and within the period of the statute of limitations applicable to the section said to have been violated. The old rule of the common law on this point, as announced in the cases cited in argument, has been greatly modified by the...