In 213 of the Criminal Code of 1909, 18 U.S.C. (1946 ed.) 336, which forbids the mailing of any letter, package, postal card, or circular "concerning any lottery" or similar scheme, the words "concerning any lottery" mean an existing, going lottery or gambling scheme; and the section is not applicable to the mailing of a punchboard with a letter suggesting how it might be used and an order blank for ordering merchandise to be used for prizes, when neither the sender nor the addressee was engaged in the operation of a lottery or similar scheme. Pp. 277-281.
The District Court dismissed an indictment of respondent for violation of 213 of the Criminal Code of 1909, 18 U.S.C. (1946 ed.) 336. On direct appeal to this Court under 18 U.S.C. 3731, affirmed, p. 281.
John R. Benney argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General McInerney, Beatrice Rosenberg and J. F. Bishop.
Horace J. Donnelly, Jr. argued the cause for appellee. With him on the brief was Bruno V. Bitker.
MR. JUSTICE MINTON delivered the opinion of the Court.
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 [342 U.S. 277, 278] appealed directly to this Court, pursuant to 18 U.S.C. (Supp. IV) 3731. The pertinent provisions of the statute upon which the indictment was based were as follows:
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 [342 U.S. 277, 279] $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 , 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 . . . ." (28 Stat. 963). In [342 U.S. 277, 280] holding that the defendants had not violated the statute this Court said:
Congress has had before it many times the question of what gambling devices and paraphernalia it would exclude from the mails and interstate commerce, 4 and only recently has it passed an act concerning the subject. Act of January 2, 1951, P. L. No. 906, 64 Stat. 1134, 15 U.S.C. 1171. If punchboards are to be added to the category of devices to be excluded, it is for Congress to make the addition.
The judgment is
[ Footnote 3 ] Report of the Postmaster General 72 (1915).