Page:Federal Reporter, 1st Series, Volume 1.djvu/440

432 FEDERAL EBPOKTEB. �indietment on a, motion to quash, or on demurrer, we tliink it no sufficient ground in arrest of judgment. It is quite clear the defendant suffered no prejudice on this account. We think, also, that this defect in the indietment is one of those defects of informai averment which, as distingushed from a defect consisting in the total want of an essential averment, is cured after verdict, even at common law. Heymann v. The Queen, 12 Cox Cr. G. 383; Bradlaugh y. The Queen, L. E. 32, B. D. 642. �4. It is also objected to the first count that it omits necee- sary allegations to show that, in the sense contemplated hy the statute, the letter set forth was one concerninga lottery. The argument is that the statute was not intended to prohibit ail Jet- tera concerning a lottery, but only such as were designed to promote and further the illegal or immoral business of set- ting up and carrying on lotteries. It is true that where an act 18 prohibited, and upon the necessary construction of the statute it is evident that the act is intended to be proscribed only under certain circumstances, or uponfacts coming within the well understood reaaon of public polîcy which led to the enactment of the statute, it is not generally sufficient to charge the offence in the words of the statute. Non constat, the act may be within some of the implied exceptions, (U. S. v. Gooding, 12 Wheat 460 ; U. S. v. Pond 2 Curt. 0. C. 265-268 ;) and no doubt many innocent letters may be written and sent by mail concerning lotteries; as, for instance, a letter from a man to his son, cautioning him not to be induced to spend his money for lottery tickets. This statute clearly has many implied exceptions. But we think that, assuming that there is, as we have held that there is, an averment in substance that the expressions in this letter set out referrred to a lottery, it does appear clearly on the face of the paper that it was such a letter as is within the prohibition of the statute. It admits of no possible meaning unless it is understood to be a communication in the course of a direct dealing in lottery tickets. Such a letter is unmistakably within the reason and the prohibition of the statute, �5. The alleged defeCt in the second count is that the cir- ��� �