United States v. Halseth, 91
| Decision Date | 07 January 1952 |
| Docket Number | No. 91,91 |
| Parties | UNITED STATES v. HALSETH |
| Court | U.S. Supreme Court |
Mr. John R. Benney, Washington, D.C., for the United States.
Mr. Horace J. Donnelly, Jr., Washington, D.C., for appellee.
Appellee was indicted on eight counts in the District Court for the Eastern District of Wisconsin for violation of § 213 of the Criminal Code of 1909, 35 Stat. 1129—1130, 18 U.S.C. § 336.* The District Court granted appellee's motion to dismiss the indictment, and the United States appealed directly to this Court, pursuant to 18 U.S.C. (Supp. IV) § 3731, 18 U.S.C.A. § 3731. The pertinent provisions of the statute upon which the indictment was based were as follows:
The first count of the indictment charged that: 'Perry Halseth, knowingly, wilfully and unlawfully did cause to be delivered by mail to Miss Lucia Brown a circular letter concerning a lottery or scheme offering a prize dependent upon lot or chance * * *.'
The other counts were identical except as to the name of the addressee and the point of delivery.
For the purpose of the motion to dismiss, the parties stipulated as to particularity that a letter, a circular, an order blank, and a punchboard were sent to the addressee by mail. The letter subtly indicated how the addressee might obtain a radio free by selling the chances on the punchboard and how certain lucky numbers would reward the purchaser with prizes of a radio and three Rolpoint ball pens.1 The punchboard contained an illustration of merchandise to be won. No merchandise was sent with the mailing. If the addressee desired to put the scheme into operation, the merchandise could be obtained by sending the full amount in cash, or by a down payment of $2.00 with the order and the balance payable on delivery, or by a C.O.D. shipment. The punchboard also informed the addressee that merchandise could be 'purchased' from appellee at any time.
The District Court held that even if these stipulated facts had been alleged in the indictment and accepted as true for the purpose of the motion to dismiss, still the indictment did not state an offense because the mailing did not concern an existing lottery or scheme to obtain prizes by lot or chance. The question therefore is whether the mailing of gambling paraphernalia that may be used to set up a lottery or similar scheme is a violation of the statute.
The statute on which the indictment is based was passed in 1909, and since that time no reported case has been found construing it. However, in cases construing analogous lottery statutes, old in our law, the courts have held that they apply only to existing lotteries or schemes.2
In France v. United States, 164 U.S. 676, 17 S.Ct. 219, 41 L.Ed. 595, a lottery had been conducted in Kentucky. After the drawing was over, persons who were interested in the outcome and who had taken money to the operators of the lottery for chances purchased were returning across the state line to Ohio; they had in their possession the official print of the lucky number that had been drawn, slips that corresponded with the lucky number, known as 'hit slips,' and money which was to be given to winners. They were arrested and charged with a conspiracy to violate a statute which prohibited the carrying across state lines of '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 * * *.' Act March 2, 1895, 28 Stat. 963. In holding that the defendants had not violated the statute this Court said:
* * *
'There is no contradiction in the testimony, and the government admits and assumes that the drawing in regard to which these papers contained any information had already taken place in Kentucky, and it was the result of that drawing only that was on its way in the hands of messengers to the agents of the lottery in Cincinnati.
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