arrived at; the bet has already been determined. * * *
'The statute does not cover the transaction, and, however reprehensible the acts of the plaintiffs in error may be thought to be, we cannot sustain a conviction on that ground. Although the objection is a narrow one, yet, the statute being highly penal, rendering its violator liable to fine and imprisonment, we are compelled to construe it strictly. * * * If it be urged that the act of these plaintiffs in error is within the reason of the statute, the answer must be that it is so far outside of its language that to include it within the statute would be to legislate, and not to construe legislation.'
Section 1301 of Title 18 of the United States Code under which the defendant in this case was convicted was based on Title 18, United States Code, 1940 ed., Sec. 387, which was in turn derived from Section 1, Chap. 191 of the Act of March 2, 1895, the section involved in the France case. However, the Act of March 4, 1901, Chapter 321, Sec. 237, being Sec. 387 of Title 18 of the United States Code, 1940 edition, was different in content from the Act of 1895 from which it was derived in that the Act of 1909 included in the list of items whose carriage in interstate commerce was prohibited any 'list of the prizes drawn or awarded by means of, any such lottery, gift enterprise, or similar scheme'. (emphasis added.) The Act of 1895 contained no reference to list of prizes drawn or awarded. However, the present section for violation of which the defendant was tried does contain a provision similar to that in the Act of 1909.
In a very recent case, the Supreme Court of the United States, citing France v. United States, supra, held that the words 'concerning any lottery' contained in Sec. 213 of the Criminal Code of 1909, 18 U.S.C. (1940 ed.) Sec. 336 mean an existing going lottery or gambling scheme. United States v. Halseth, 1952, 342 U.S. 277, 72 S. Ct. 175. The Court recognized that the statute involved was penal and must be strictly construed.
This statute must be strictly construed also. We can find no reported case construing this statute with respect to lists of prizes drawn or awarded. At the trial of the case, upon the authority of the France case, we granted defendant's motion for judgment of acquittal on counts 1 and 2, the counts involving the interstate carriage of tickets dependent on a lottery. We refused the motion with respect to the advertisement and list of prizes. However, we have concluded that the judgment of acquittal must be granted on the count involving the interstate carriage of advertisements since the Act of 1895 contained a provision relating to advertisements and since the language of the France case seems broad enough to cover advertisements. At page 683, of 164 U.S., at page 222 of 17 S. Ct., the court says that 'Full effect is given to the statute by holding that the language applies only to that kind of a paper which depends upon a lottery the drawing of which has not yet taken place, and which paper purports to be a certificate, etc., as described in the act.'
Count 3 relates to the interstate carriage of an advertisement an a judgment of acquittal will be entered on that count.
Counts 4, 5 and 6 relate to the interstate carriage of lists of prizes awarded, and in our opinion the conviction on these counts must be sustained. The pertinent language of Sec. 1301 is as follows: 'Whoever * * * carries in interstate * * commerce any * * * list of the prizes drawn or awarded by means of, any such lottery, gift enterprise, or similar scheme * * * shall be fined * * *.' (Emphasis added.)
The terms 'drawn or awarded' are in the past tense, and contemplate that the drawing or event upon which the lottery depends has already happened. Defendant, in effect, asks us to preface these words with the words 'to be' making this portion of Section 1301 read 'list of the prizes drawn or awarded'. This, and here we adopt the language of the Supreme Court in the France case 164 U.S. at page 683, 17 S. Ct. at page 222, would be 'so far outside of its language that to include it within the statute would be to legislate, and not to construe legislation'. For this reason and the further one that this provision was not included in the Act of 1895 but was new to the Act of 1909, we conclude that the conviction on the counts relating to the interstate carriage of lists of prizes awarded must be sustained.
Defendant's motion for judgment of acquittal will be granted with respect to count 3, but will be denied with respect to counts 4, 5 and 6.
Defendant's alternate motion for a new trial must be denied also since there is nothing asserted by defendant that would require the granting of a new trial. Our discussion relating to defendant's motion for a judgment of acquittal is equally applicable to his motion for a new trial and supports a denial of that motion.