within the statute, to assume a fictitious name in a lawful business.

In Tingle vs. United States, 87 Federal, 320, the Circuit Court of Appeals for the Fifth Circuit held that the indictment was defective, because it failed to allege in appropriate words that the alias and fictitious and false name set out in the indictment, to wit, Otho Aronson, was not in fact the name of a real person, and under this allegation in the bill, the Court charged the jury that they could convict the defendant whether or not Aronson was a real person, and this charge the Court held to be erroneous.

In other words, the decision would seem to indicate, though it does not so decide, that to be entirely safe, the prosecution must satisfy itself that the assumed name is not in reality the name of some actual person before it chooses to make the allegation in the bill. If the assumed name were in fact the name of a genuine person, then it is thought that the bill could not allege, and stand the test, that the name so used for the unlawful business was in fact fictitious and false. There should be appropriate allegations under a different portion of the law, or rather, as the law now stands, the case would be a fraudulent use of the mail, under Section 215, instead of Section 216.

§ 58. Lottery, Gift-Enterprise, Etc., Circulars, Etc., Not Mailable.-Thomas, in his interesting volume which treats exhaustively some postal offenses which include lottery violations, calls our attention to the fact that the lottery as a method of gambling has prevailed from the remotest antiquity. In England, Italy, France, Germany, Austria, Spain, Holland, Denmark, Japan, China, Mexico, and many of the South American Republics, lotteries not only have flourished, but still live and thrive. The life of the lottery in the United States was active and fortune producing. The public conscience, however, first pricked in some of the old countries, notably England, aroused itself in the United States, and various state legislatures attempted to rid this country of this system of gambling. It was not until 1872, however, that Congress took a hand in the fight, giving us Section 3894, of the old Statute, which, while a move in the right direction, was rather puny, and not at all strong enough to combat the gigantic power and force of the deep-rooted

evil. Later, September 19, 1890, 26 St. L., 465, First Volume Supplement, 803, came a substitute for 3894, under which much effective prosecution was had. On March 2, 1895, 28 St. L., 963, Second Volume Supplement, 435, came an assisting and auxiliary Act, which left in force all of the old statutes, and provided some new provisions. This was the last lottery act before the new code. Under this legislation, the lottery, and practically every other scheme involving a chance or draw, has been driven from this country. The law inhibits the passing of lottery matter either through the mails or by any private carrier from one state ot another, or from another country to the United States, or from the United States to another country. The sending of lottery matter, as defined in the statute, which includes letters or circulars or any sort of an advertisement relating thereto, by any of the post-office facilities, for never so short a distance, is a violation; the sending of any such matter by private conveyance from one state to another state, or across the border from one country to another country, is a violation.

The new law, or Section 215, reads as follows:

"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; and no lottery ticket or part thereof, or paper, certificate, or instrument purporting to be or to represent a ticket, chance, share, or interest in or dependent upon the event of a lottery gift enterprise or similar scheme offering prizes dependent in whole or in part upon lot or chance; and no check, draft, bill, money, postal note, or money order, for the purchase of any ticket or part thereof, or of any share or chance in any such lottery, gift enterprise, or scheme; and no newspaper, circular, pamphlet, or publication of any kind containing any advertisement of any lottery, gift enterprise, or scheme of any kind offering prizes dependent in whole or in part upon lot or chance, or containing any list of the prizes drawn or awarded by means of such lottery, gift enterprise, or scheme, whether such list contains any part or all of such prizes, shall be deposited in or carried by the mails of the United States, or be delivered by any postmaster or letter carrier. Whoever shall knowingly deposit or cause to be deposited, or shall knowingly send or cause to be sent, anything to be conveyed or delivered by mail in violation of the provisions of this section, or shall knowingly deliver or cause to be delivered by mail anything herein forbidden to be carried by mail, shall be fined not more than one thousand dol

lars, or imprisoned not more than two years, or both; and for any subsequent offense, shall be imprisoned not more than five years. Any person violating any provision of this section may be tried and punished either in the district in which the unlawful matter or publication mailed, or to which it was carried by mail for delivery according to the direction thereon, or in which it was caused to be delivered by mail to the person to whom it was addressed."

It will be noticed that every possible term indicating latitude in the old statutes has been incorporated into the new section, and in addition thereto, it authorizes the trial of any offender in either the district wherein the matter was deposited in the mails, or in the district where the same was taken from the mails. The statute, however, continues to contain the original weakness of the old statutes, to wit, an indictment which charged merely the depositing of a lottery ticket, etc., purporting to be or represent a ticket, chance, share, or interest in or dependent upon the event of a lottery, etc., would not be sufficient to sustain a conviction where the proof only showed the deposit of tickets, etc., evidencing a drawing that had already taken place. The tickets, to make an offense under that portion of the statute, must be for a future drawing; otherwise, it would not be a share or interest in or dependent upon the event of a lottery, etc. It is quite true that the indictment could include other portions of the statute, as, for instance, that the tickets, even though representing a past drawing, were advertisements of the lottery, and, therefore, contraband and unlawful. In France et al vs. United States, 164 U. S., 674; 41 Law Ed., 595, the Supreme Court of the United States, speaking through Mr. Justice Peckham, said:

"The lottery had already been drawn; the papers carried by the messengers were not, then, dependent upon the event of any lottery. The language as used in the statute looks to the future. The papers must purport to be or represent an existing chance or interest, which is dependent upon the event of a future drawing of the lottery. A paper that contains nothing but figures, which in fact relate to a drawing that has already been completed, and one that is past and gone, cannot properly be said to be a paper certificate or instrument as described in the statute. It purports to show no interest in or dependent upon the event of any lottery. If the lottery has been drawn, the interest is no longer dependent upon it. The condition upon which the bet or the in

terest was dependent has happened; the solution of the problem has already been arrived at; the bet has already been determined. The bare statement of that solution or determination, placed on paper, does not impart to that paper the character of a certificate or instrument purporting to be or represent a ticket, etc., dependent upon the event of a lottery. From the statement upon the paper, the agent may acquire the knowledge which will enable him to say who has won, but the book or the paper does not purport to be, and is not, a certificate, etc., within the Act of Congress."

It may, therefore, be contended that Section 213 is no broader in the way of remedying this defect than was the original law. The Act of March 2, 1895, still stands as the only Act that makes it against the law to transport by private carrier from one state to another. In 125 Federal, page 617, United States vs. Whelpley, the Court held that the Act of 1895 did not prohibit the transportation of lottery tickets from a state to the municipality of the District of Columbia, and also that the section did not prohibit the transportation of lottery tickets from one state "through" another state or states, where the ultimate destination of the shipment was not within one of the United States. See also United States vs. Ames, 95 Federal, 453, which held that the transportation of lottery tickets from a state to a territory is not within the statute. In this last case, however, the point of great importance to the life and validity of the Act of March 2, 1895, was, whether Congress had the power, under the Commerce clause of the Constitution, to prohibit the transportation of lottery matter from one state to another state in the United States, by carriers or persons that were not government utilities. Circuit Judge Jenkins held the law to apply fully. Thereafter, in the same case, styled Champion vs. Ames, in 188 U. S., 321; 47 Law Ed., 492, Mr. Justice Harlan, speaking for the Court, settled for all time the effectiveness of the new Act. The writer had the honor to draw the indictment passed upon in that case, and each of the defendants was afterwards convicted at the Dallas Division of the Northern District of Texas. In that opinion, Mr. Justice Harlan, after reviewing extensively the authorities, the Court having ordered a re-argument, said:

"It was said in argument that lottery tickets are not of any real or substantial value in themselves, and, therefore, are not subjects of commerce. If that were conceded to be the

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only legal test as to what are to be deemed subjects of the commerce that may be regulated by Congress, we cannot accept as accurate the broad statement that such tickets are of no value.....These tickets were the subject of traffic; they could have been sold; and the holder was assured that the company would have paid to them the amount of the prize drawn. That the holder might not have been able to enforce his claim in the courts of any country making the drawing of lotteries illegal, and forbidding the circulation of lottery tickets, did not change the fact that the tickets issued by the foreign company represented so much money payable to the person holding them, and who might draw the prizes affixed to them. Even if a holder did not draw a prize, the tickets, before the drawing, had a money value in the market among those who chose to sell or buy lottery tickets. In short, a lottery ticket is a subject of traffic, and is so designated in the Act of 1895.....We are of the opinion that lottery tickets are subjects of traffic, and, therefore, are subjects of commerce, and the regulation of the carriage of such tickets from state to state, at least by independent carriers, is a regulation of commerce among the several states."

§ 59. What Is a Lottery or Chance?-In Horner vs. United States, 147 U. S., 449, the Supreme Court of the United States in effect determined that whatever amounted to a distribution of prizes by lot was a lottery, no matter how ingeniously the object of it might be concealed. In United States vs. Wallis, 58 Federal, 942, the Court held that the language of the statute is sufficiently comprehensive to include any scheme in the nature of a lottery, and it may be sufficient to say, said the Court, that this embraces the elements of procuring through lot or chance, by the investment of a sum of money or something of value, some greater amount of money or thing of greater value. When such are the chief features of any scheme, whatever it may be christened, or however it may be guarded or concealed by cunningly devised conditions or screens, it is, under the law, a lottery. So, in Randall vs. State, 42 Texas, 585, the Court determined that Courts will not inquire into the name, but will determine the character of the transaction or business in which parties are engaged. Mr. Thomas, in his work, cited supra, has collaborated a number of definitions, from which the following are taken:

"A lottery is a sort of gaming contract, by which, for a valuable consideration, one may, by favor of the lot, obtain a