United States v. Purvis

• Decision Date: 01 March 1912
• Docket Number: 12,413.
• Citation: 195 F. 618
• Parties: UNITED STATES v. PURVIS et al.
• Court: U.S. District Court — Northern District of Georgia

195 F. 618

UNITED STATES v. PURVIS et al.

No. 12,413.

United States District Court, N.D. Georgia.

March 1, 1912

John W Henley, Asst. U.S. Atty.

Tye Peeples & Jordan, J. D. Kilpatrick, Geo. F. Gober, Evins &amp Spence, and J.E. & L. F. McClelland, for defendants.

NEWMAN District Judge.

This is an indictment under section 213 of the Federal Penal Code of 1910, which provides that:

'No letter, package, postal card, or circular concerning any lottery, gift enterprise, or similar scheme offering prizes dependent in whole or in part upon lot or chance * * * shall be deposited in or carried by the mails of the United States, or be delivered by any post master or letter carrier'-- and then fixing a penalty for the violation of the section.

There is a demurrer to the indictment upon several grounds.

The first ground I will refer to, as it is easily disposed of, is that the charge in the indictment that the defendants 'deposited or caused to be deposited in the post office' the letter set out in the indictment is bad for duplicity. This, as I understand it, is not insisted upon; but, even if it should be, this objection to the indictment is clearly not well taken.

The next ground of demurrer which may be considered is that the indictment does not sufficiently charge knowledge on the part of the defendants of the contents of the letter, the basis of the indictment.

The language of the indictment is 'did then and there unlawfully and knowingly deposit and cause to be deposited in the post office at Atlanta, Ga.,' etc. The contention is that the word 'knowingly' as there used only qualifies the verb 'deposit' and not the succeeding language of the indictment setting out the character of the contents of the inclosure. In many cases in which it was charged in the indictment that the defendant 'did knowingly deposit in the post office' a certain letter, and then proceeds to state 'which said letter contained certain unmailable matter,' describing it, it is held that the word 'knowingly' not only qualifies the verb 'deposit,' but the whole matter described subsequently in the indictment. 13 Enc.Pl. & Pr. 395.

In United States v. Clark (C.C.) 37 F. 106, 107, Mr. Justice Brewer, Circuit Judge, stated the rule as he understood it as follows:

'Doubtless the question turns largely upon whether the word 'knowingly,' as used in the statute and the indictment, qualifies simply the adjacent verb 'deposit,' or the whole matter described. It may be conceded that ordinarily an adverb is understood to qualify its adjacent verb; and yet that is not always true, and in construing words and sentences used in an indictment we are to give them their ordinary significance, in the absence of some technical construction necessarily imposed upon them. Now, it is a familiar use of the verb 'knowingly' that it qualifies both its adjacent verb and the full act thereafter described. A few simple illustrations will make this clear: I say that a party knowingly told a lie. Every one understands from that that I mean that the party has stated that which he knew to be a lie, and not simply that he stated that which was in fact untrue, yet unknown to him to be untrue. And in the same way, when I say that a party knowingly deposited an obscene picture, no one supposes that I mean that he simply deposited a picture, the character of which he was ignorant of. All understand that I mean to say that he has deposited that which he knew to be obscene; and this because the adverb 'knowingly,' used in sentences of this kind, by the common understanding of all, goes beyond the mere verb, and includes broadly all that is expressed in the full act charged to have been done.'

In United States v. Fulkerson (D.C.) 74 F. 619, 626, Judge Wellborn, in the Southern district of California, discusses and disposes of this question in the following language:

'With reference to the second objection stated, I am of opinion that the words of the indictment, 'did knowingly deposit,' etc., in their ordinary acceptation, mean that defendants knew that the matter which they are alleged to have deposited in the post office concerned a lottery. On this point I shall follow, not the ruling in U.S. v. Slenker (D.C.) 32 F. 691, but the view expressed by Mr. Justice Brewer, as follows: (Quoting the language given above.)' To the same effect is 1 Bishop, Crim. Procedure, Sec. 504; United States v. Nathan (D.C.) 61 F. 936-938; Shepard v. United States, 160 F. 584, 588, 589, 87 C.C.A. 486; Konda v. United States, 166 F. 91-92, 92 C.C.A. 75, 22 L.R.A. (N.S.) 304.

It is urged that some of these cases are cases for using the mails to convey obscene literature, and that this makes a distinction between those cases and the present case. I think an examination of the cases will show that, while it is true that a number of the cases were for mailing obscene literature, the rule of criminal pleading as stated is as applicable in the present case as in that class of cases.

The main ground of demurrer, and the one to which the very able and thorough argument in the case has been directed, is that the facts set out in the indictment and in the 'loan investment contract' made a part of the indictment do not constitute a lottery or similar enterprise. This is the principal and serious question for determination here.

In order to constitute a lottery, there must be a consideration, chance, and prize. That is to say, a person must pay something for the opportunity to try for a prize by chance or lottery. Does the scheme now under consideration come within this definition?

Very clearly there was a consideration, and this is conceded by defendant's counsel.

The opportunity to obtain a loan, which seems to have been the main feature of this scheme, was determined to a large extent by the way in which the applications for loans were received at the office of the company; that is to say, if a number of applications for loans were received at the same time, by the same mail, they were put on the records of the company as they were opened and numbered, and it was of course a mere matter of chance as to which the officer, or the clerk engaged in this work, should take up first, as he opened and entered them. It is generally held by the courts that this is chance, such chance as is necessary to constitute that element of a lottery.

In MacDonald v. United States, 63 F. 426, 431, 12 C.C.A 339, 344, which was a lottery case, and in which a verdict of guilty was affirmed by the Circuit Court of Appeals...