Boasberg v. United States

60 F.2d 185, 1932 U.S. App. LEXIS 2471

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 13, 1932
• Docket: No. 6381
• Status: Published

Opinions

SIBLEY, Circuit Judge.

The appellant was convicted by a jury for mailing a circular concerning a scheme similar to a lottery, to wit, playing “keno,” in violation of 18 USCA § 336. Errors mainly urged are the overruling of a demurrer to the indictment, of a motion to instruct a verdict of not guilty, and one to arrest the judgment. The words of the section here material are: “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. * * * Whoever shall knowingly deposit or cause to be deposited * * * anything herein forbidden to be carried by mail, shall be” punished as stated. The indictment alleges that the accused willfully and knowingly deposited in the mail at New Orleans on January 31, 1936, “a circular and advertisement concerning a scheme offering prizes dependent upon lot or chance similar to a lottery addressed to George M. Carnes, etc., reading as follows: ‘Suburban Gardens Will Inaugurate a New Innovation for the Better People of New Orleans Keno $100.00 or More to the Winner Every Roll Commencing February 5th, 1930. Doors open at 6:30 P. M., first game at 7 P. M. M. Boasberg.’ ” There follow allegations that keno is a well-known gambling game played by each player buying from the keeper at a fixed price one or more checkered, cards, fifteen of the checkered spaces on each card bearing numbers, and the others being blank; the keeper or his agent draws a number from a bag or globe which is announced, and each player covers that number on his cards if he has it; and this proceeds until some player first gets all the numbers on a card or in a row of a card, according to the rule adopted, when he calls “keno,” and on verification'the stakes of all the players less the keeper’s percentage go to him' as winner. It was proven without dispute that appellant, who was the proprietor of Suburban Gardens, an amusement place, had mailed out 1,500 or 1,800 such circulars to young men whose addresses had been gotten from the membership lists of several New Orleans clubs.

Over obj ection for irrelevancy, testimony was received that keno was usually played as set forth in the indictment. Although keno is defined and described in some English dictionaries and encyclopedias about as set forth in the indictment, the word not being mentioned in the statute is not a term of which the judges need profess or confess their knowledge. Its meaning was properly alleged in the indictment, and, having been alleged, was proper to be proven. The evidence objected to tended to explain the meaning of the circulars which were mailed a week before the games were to begin.

It is urged that the indictment does not sufficiently describe the scheme which the circulars concerned. The indictment initially alleges that it was a scheme offering prizes dependent upon lot or chance similar to a lottery, in the words of the statute,- which is quite indefinite. But the circular as set forth itself states that it concerned proposed games of keno, which the indictment then interprets as above stated, and ends by charging that appellant “then and 'there well knew said keno to be a gambling game dependent on lot or chance and similar to a lottery.” One could hardly fail to understand from all of this that the described keno game was the scheme meant. Certainly no surprise resulted, for the defendant admitted having had that scheme. We could not award a new trial for this fault of pleading, if it be such, consistently with 28 USCA § 391.

The real question is whether a scheme to fun keno games is a scheme offering prizes dependent in whole or in p-art upon lot or chance, and similar to a lottery or a gift enterprise. The legislation was no doubt provoked by the interstate and international lotteries which operated on a great scale and largely by means of the mails. The gift enterprises were frequently so conducted also, but the statute as reframed by the Criminal Code adopted in 1909, § 213 (18 USCA § 336), the former legislation being repealed by section 341 (35 Stat. 1153), does not limit itself to interstate enterprises or to large ones, or to those to whose operations the use of the mails is necessary, nor does it stop with lotteries and gift enterprises, but extends to similar schemes offering prizes dependent in whole or in part upon lot or chance. To, be like a lottery there must be something staked, a larger possible winning, and the winning or losing must depend on lot or chance and not on skill or judgment. See 23 Op. Attys. Gen. 200, 207, 492. Gambling schemes where winning depends on skill or judgment are not like a lottery in which success is determined by pure chance and is thus specially attractive to the inexperienced and the ignorant. But we think keno is within the schemes covered by the statute. Each player buys a card analogous to a lottery ticket. He expects to win a prize produced by the contributions of all other buyers, and who will win depends on the pure chance of what numbers are first drawn. It is a lottery where winning hangs, not on one lucky draw, but on several. It is said that one must be present to win at keno. He may be present, but need not be at most lottery' drawings. Gift enterprises very commonly require the holder of tickets to be present at the award. A factor so inconstant cannot be the basis of a distinction. While the use of the mails has not been denied. to every form of gambling, we think a scheme to play keno cannot lawfully be served by them.

Judgment affirmed.