United States v. Bailey

47 F. 117, 1891 U.S. App. LEXIS 1396

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: July 24, 1891
• Status: Published

Opinion

Benedict, J.

I do not think this indictment defective for failing to show how and in what manner the circulars set forth in the several counts concern a lottery. It is sufficient, in my opinion, to charge in the words of the statute the fact that they do concern a lottery, without setting forth the evidence going to show that fact. But I think the indictment defective, because it fails to aver the existence of any lottery, or of an intention to hold any lottery or drawing for prizes to which the circulars set forth relate. The circulars upon tlieir face do not show that they concern or in any way relate to a lottery. In such a case, the existence of a lottery, or of a scheme for a lottery, or of an intention to hold some lottery or drawing for prizes, to which the circulars relate, must be proved by other evidence than the circulars themselves. The fact should therefore be averred. For absence of this averment, the demurrer to the indictment is sustained.