UNITED STATES V. ZEISLER.
We see nothing repugnant in the count, and we may further add that there is no uncertainty in the charge which need put the defendant to disadvantage in making his defense. The demurrer is accordingl)' ruled.
UNITED STATES 11. ZEISLER.
(Circuit Oourt, N. D. lllirwis. March 14, 1887.)
1. LoTTERIEs-MAILING CIRCULARS-INDICTMENT. The effect of Rev. 8t. U. 8. § 3B94, prohibiting the mailing of lot.tery circulars, etc., is to make any matter concerning lotteries unmailable, and to SUbject the sender of any such matter by mail to the penalty therein provided. 2. SAlIB-FLOATING MUNICIPAL BONDS. When a city or a government, in order to make an inducement for peQple to buy their bonds, holds out large prizes to be drawn by chance, or determined by lot in the manner. in which prizes are usually determined in honestly conducte.d lotteries,. the mailing of CIrculars concernmg. such drawings, past and filture, is a mailing of lottery circulars, within Rev. 8t. U. 8. § BBll4.
Indictment under Rev. St. u. s. § 3894, for sending a lottery circular though the mails. W."G.Ewing, U. S. Dist. Atty., for the United States. Kraua,BrO£ket & Mayer, for defendant.
Bx.ooom,]. Thedefendant is charged by the indictment in this Case with willfully and knowingly'depositing in the post-office of the United States, to be conveyed by mail, a circular (loncerning a lottery; that is to say, a circularaddressed to one August Muller, entitled "Fortune, Allthentisches Central Ziehungsblatt," and concerning divers lotteriestllerein mentioned·. Upon the trial the defendant admitted sending the circulars through 'the mail as charged, and a verdict of guilty was relldered; whereupon defendant entered a motion for new trial, and inarresfof sentence, on the ground that the matter sent through the mail did not concern. or relate to a lottery, within. the meaning of s.ection &894 of the Revised Statutes, under which the indictment was found: Section 8894 reads as follows: .' "No letter or circular concer:r;IiJ;lg lotteries, so-called '. gift concerts,' or other similar enterprises, offerhig prizes, or concerning scbetnes devised and intended to deceive and defraud. the pUblic, for the purpose of obtaining money under false pretenses, shall be carried in the mail.'.4\.ny person who shall knowingly deposit or send anything .1;(), be conveyed by mail, in violation of .shall be puni,shed by .fine of. not mpre than $500, nor less than $100, with costs of prosecutipn." . Theefl'eet of thia. stAtute is to make any matter concerning lotteries unmailable, and subjecta the.persQDssending such matter by mail to the penalty therein provided. It appears from the prooLthat the city of Vienna"in the empire of Austl'1a, in 1874, issued bonds· for 100 guilders the;amount of 30,000 1000 guilders, to be refunded within 50
years in,accordanqeiwith th'e drawing plan attached to each bond. The bonds were divided into 3;000 series, and each bdnd showed the series to whi91l it belonged, and its number in its series. Thebon<js drew no interest, and quarterly drawings were to be made from a wheel offc>rt. une, and the numbers drawn from such wheels determined the bonds to be paid within three months from such drawing, and the amount to be paid on each. At each drawing, say 1,200 numbers, corresponding to the number of the bonds. were drawn from the wheels of fortune. The number first drawn entitled the holder of the bond corresponding to that number to avery large prize,-say, for the earlier drawings, of 200,000 guilders, and for the later drawings something less, say about hi.rge prize, 150,000 guilders; but the prst-drawn number always took which varied, according to the time of the drawing, fwm200,OOO to 150,000 guilders. There was also at each drawing a prizeo! say 50,000 went to the holder?f the b.ond. the sec?,ndnumper drawn from the wheel; a thIrd pnzeof 10,000 gUllqers, WhICh went to the holder of the bond corresponding to the third number drawn; five,prizes, of 1,000 each, which went to the holders of the bonds corresponding to the fourth, fifth,sixth,seventh, arid eighth numbers drawni, and twelve smaller prizes, of 400 guilders .each, which went to the holders of the bonds corresponding to the next twelve numbers drawn; and the holders of all the other bonds indicated by .the drawn at each'drawing were entitled to be paid '130 guilders on . each bond, which canceled and paid such bonds. I have described the prizes provided in 4rawing. plans for each drawing during the first. 1 years, which included the quarterly drawings from July '1, 1874, to April 1, l884. :rhe drawings varied. somewhat in the of the prizes, but the prizes were determined by lot, in the same'way as those I have described. 'For illustration, at the last drawing, which was to take place March 1, 1924, the largest prize was 150,000 guilders,the next 10,QOO guilders, the next 5,000 guilders, 5 of 1,000 guilders each, 125 of 250 guilders eachi and the r(lmaining 3,585 bonds would get 200 guilders each; so that a purchaser of one of these bonds had the chance to draw, within avery few' mOI;lths after their issue, guilders, or 50,000 guilders, or 10,000 guilders, or 5,000 gunders,. or 1,000 guilders, .or 400 guilders, or the amount Of the face of the bond and 30 guilders. ." . , '., . , . The circulars the defendant sent through the mail announced the results of d,rawings f.t:om tiPl6 to time, aild announced. when the next drawing would take place, not only in regard to these Vienna: city bonds, but divers other bonds issued by other European cities and governments, without intereat,alld payable Wi:th prizes accordmg to schemes or dra,,:ing plans substantially like the Vienna bonds. ' 'If thesedl'awings determined only the time when these bonds would be paid, I should say that the mete determining of, that time by lot or drawing would not give them thecharactenstics ora 10tterYibut when l\ city or a government, in order to make an induceo16nt for people to bUy their bonds, holds out large prizes to:be drawn by chancer or· determined
UNITED ,STATES V. ZEISLER.
by lot in the manner in which prizes are usually detennined in even an honestly conducted lottery, it seems to me it comes clearly and distinctly within the inhibiting clause of the statute upder which this indictment is found. The mere reading orone of these bonds, and the drawing plan annexed to it, which is put ill evidence, shows that it was the intention to stimulate the "sale oftha bonds by these large prizes, which were to be determineq., at every drawing, and which every holder of a bond had the chance of obtaining; and hence it seems to me that the purpose of the ,scheme waw not only to determine by lot when the bonds should be paid, but also to determine certain extraordinary chances to the holders of the fo'rtunate numbers drawn. The mere fact thatthes6 bonds are authorized by the law of a foreign couutry, and sanctioned by the of such country, does not, as it seems tome, in the least dethe, question in this case. In Governor8 of,tlw Al'1l1.8 House, lite., AmerwanArt Union, 7N. Y. 228, a lottery was: defin'ild to be "a scheme for the distribution of prizes by chanc6;" and the same definii+l 'fhoma$v. 59 Ill. 160, and Dunn v.People(40
The bonds in questioncertairily involved a lottery, within the ingof the cases I have cited, and many D;lore to the ;same effect also bequQ,ted. The circulaJ: sent through the, Irian wits intended duee'persons to purchase and deal in these bonds with the hope of be<lominglhe lucky winners of saine of the high to be distributed at each drawing; and the fact tha,t the purchasersofthe bonds were, by the drawing plan, to get back their principal, and in the aggregate wha.t is equivalent tO'a very small rate of interest upon that principal, does not, as it Sl3ems to me,change the character of the transaction, or relieve it from the characteristic features of a. lottery; that is, that high prizes, (>ut of all dU,e proportion to the amount of money paid for a bond, were to pe drawn. for, and distributed by chance' amollgthe holders of these bonds, in the same manner as the prizes are determined in an ordinary ' , ' . lottery. ,The mO,tion for a new trial is overruled, and .8 fine of $100 impQsed up6n the defendant. I make this fine the lowest that the statute will allow, because this seems to have been his first offense, so far as this <lourt is advised).alld thedefendallt has perhaps acted under the advice ()f counsel, upon the belief that the scheme did not impinge upon the $tatute of the United States.
NICOLlS CUNARD S. S. CO.,
fl. THE NOORDLAND.
S. D. New York. April 4, 1887..;;)
COLLISIOlq'''':BETWEEN GETTING UNDER WAY- BACKING OUT 01' SLIP-RULES OF NAVIGATION. WHEN APPLICABLE.
. A steamer, proposing to change her course by reversing, is, upon stopping her engine for that purpose. in a situation analogous to that of sail· vessels :tackingwhen beating in .,imilarrivers or narrow streams, and, like the .latter, is. !:louna to use reasonaple.dispatch in order not to mislead or obstruct other vesiiels navigating in the Vicinity. 8. AND BACKI1'rG-.:Rrii:IC OF COLLISION-WHElq' IT ARISES. A vessel bound to keep out of the:way has a to.assume that the other vessel her duty, and pursue the ordmary and customary course, according to the special cirCUmstances. . She is not bound to stop and reverse . until there is reasonable cause' to apprehend some danger of collision·
.. ·BAME-CASE 8'J.'ATED.
A steam-propeller while baCking. ont of a slip, and two·thirds of a mi.le acros.s the river upon a defined course, for the purpose of turning about, is not engetting under way, but i.s bound by the titled to the. immunities of a rules of navIgation as respects other vessels. So far as practicable, the rules are to be applied according to her line of motion, treating. fOr the time being, her stern as her head, and her starboard side as her port si,de. .
BAME-CHANGB OF COURSE BY REVllllUlING.
The ste.a:rper N., 480 feet long, backed out of her slip at J.ersey City, straight across the NOrth river. for the purpose of turning down and out to sea. When in mid·river, ber propeller was stopped, when she gave a' Signal of two whistles indicating that she would go ahead under a starboard wheel. The steamer S., 520 feet long, was at the.llame time coming down the North river, near the Ni:l"w York shore, and sawthe N. when she stopped her propeller, and understood her purpose. The S; continued ,!roing down slowly not more thall. 800 or 1,000 feet from the New York shore. there being other vesselll between 1&r and the shore. The N. continued running out her stern way. did not set her enginesin motion for two minutes after they were stopped. then put them ahead at half slleed, and two minutes afterwards at full speed. Within a minute after, the bow of the B. strucktb.e round of thelN.'s stern not over 800 or 1,000 feet from the New York shore. The instructions of the N. were not to go more than two-thirds across the river·. She considerably exceeded thattimit and it was not usual to go so near unless the navigation was clear and unob.· .structed. .Thll S.· when she saw thatthe N. did not go ahead, ll-swas expected, stopped, and afterwards backed at full speed. and was nearly still at the collision, while the N. still had a little sternway. Held, that the two vessels were to be judA'ed according to the ordinary rules of navigation. treating the N. in reference to her line of motion, and that the N. was solely in fault (1) for going so near the New York shore unnecessarily; (2) for exceeding the usual (3) for not using reasonable dispatch in going ahead limits in such after she had signIfied her intention to do so in mid-river; (4) because the S. had no reason to apprehend any collision, as she could not anticipate that the N. would continue backing so far; (5) and because the S. did all that wall iu her power after she had any reason to apprehend danger of collision.
In Admiralty. Cross-libels for damages resulting from a collision. Owen & Gray and Frank D. Sturgis, for the Servia. Biddle & Ward and John E. Par8ona, for the Noordland.