The opinion of the court was delivered by: STEWART
Defendant was charged in six counts of violating Section 1301 of Title 18 of the United States Code, which reads as follows: 'Whoever brings into the United States for the purpose of disposing of the same, or knowingly deposits with any express company or other common carrier for carriage, or carriers in interstate 4 foreign commerce any 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, or any advertisement of, or list of the prizes drawn or awarded by means of, any such lottery, gift enterprise enterprise, or similar scheme; or knowingly takes or receives any such paper, certificate, instrument, advertisement, or list so brought, deposited, or transported, shall be fined not more than $ 1,000 or imprisoned not more than two years, or both.'
At the trial of the case, the Court, relying on France v. United States, 1897, 164 U.S. 676, 17 S. Ct. 219, 41 L. Ed. 595, granted the defendant's motion for judgment of acquittal with respect to counts 1 and 2. The jury, on November 1, 1951, found the defendant guilty on the remaining four counts. Defendant has filed a motion in arrest of judgment under Rule 34 of the Federal Rules of Criminal Procedure, 18 U.S.C. following Sec. 687 contending that the indictment does not state facts sufficient to constitute an offense against the United States. In addition, defendant has filed a motion for judgment of acquittal after verdict or in the alternative a motion for a new trial pursuant to Rule 29(b) assigning as reasons in support thereof that:
'1. The four Counts of the indictment upon which the case went to the jury, to wit, Counts 3, 4, 5, and 6, allege no indictable offense against the United States.
'2. If the indictment shows an offense to have been committed against the United States, then the evidence was not sufficient to establish such violation.
'3. The Court erred in charging the jury and in refusing to charge the jury as requested.
'4. The verdict was against the law and the evidence.'
The first reason in support of the motion for judgment of acquittal is the same as that asserted in support of the motion in arrest of judgment. The question of whether Counts 3, 4, 5 and 6 of the indictment charge indictable offenses against the United States is properly raised by the motion in arrest of judgment.
Rule 34 provides, in part, that: 'The court shall arrest judgment if the indictment or information does not charge an offense * * *'.
Little need be said concerning this aspect of the case. It is apparent that each of the remaining counts does charge an offense against the United States, namely, a violation of Section 1301 of Title 18 of the United States Code, quoted supra. Requiring closer examination is the question of the sufficiency of the evidence to sustain the conviction. This question is properly raised by the motion for judgment of acquittal.
Although variously stated by defendant, essentially he asserts three specific grounds in support of the motion for judgment of acquittal. They are as follows:
(1) Intent, i.e., bad purpose or evil motive has not been sufficiently proved.
(2) The evidence is insufficient to prove that the advertisement and prize lists were carried in interstate commerce.
(3) The evidence is insufficient to prove that the advertisement and prize lists related ...