Regulations of the Federal Communications Commission providing
for the denial of licenses to radio and television broadcasting
stations which broadcast so-called "give-away" programs, in which
prizes are given to persons elected by chance who answer certain
questions correctly but who are not required to contribute any
money or other valuable consideration
held invalid as
going beyond the scope of 18 U.S.C. § 1304, and thus exceeding the
rulemaking power of the Commission. Pp.
347 U. S.
285-297.
(a) Unless such "give-away" programs are illegal under 18 U.S.C.
§ 1304, the Commission cannot employ the statute to make them so by
agency action. Pp.
347 U. S.
289-290.
(b) The contribution of money or other valuable consideration by
the contestants is an essential element of the offense proscribed
by 18 U.S.C. § 1304, which forbids the broadcasting of "any
lottery, gift enterprise, or similar scheme, offering prizes
dependent in whole or in part upon lot or chance." Pp.
347 U. S.
290-291.
(c) The increased advertising value of a "give-away" program
resulting from the requirement, direct or indirect, that home
contestants listen to the program does not constitute a valuable
consideration for purposes of 18 U.S.C. § 1304. Pp.
347 U. S.
291-295.
(d) Section 1304 of 18 U.S.C. is a penal statute, and it must be
construed strictly. P.
347 U. S.
296.
110 F.
Supp. 374, affirmed.
The District Court enjoined enforcement of certain provisions of
regulations of the Federal Communications Commission relating to
the broadcasting of so-called "give-away" programs.
110 F.
Supp. 374. On direct
Page 347 U. S. 285
appeal to this Court under 28 U.S.C. §§ 1253 and 2101(b),
affirmed, p.
347 U. S.
297.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
These cases are before us on direct appeal from the decision of
a three-judge District Court in the Southern District of New York,
enjoining the Federal Communications Commission from enforcing
certain provisions in its rules relating to the broadcasting of
so-called "give-away" programs. The question presented is whether
the enjoined provisions correctly interpret § 1304 of the United
States Criminal Code, formerly § 316 of the Communications Act of
1934. This statute prohibits the broadcasting of ". . . any
lottery, gift enterprise, or similar scheme offering prizes
dependent in whole or in part upon lot or chance. . . ." [
Footnote 1]
The appellees are national radio and television broadcasting
companies. They are, in addition, the operators
Page 347 U. S. 286
of radio and television stations licensed by the Commission.
Each of the appellees broadcasts, over its own and affiliated
stations, certain programs popularly known as "give-away" programs.
Generally characteristic of this type of program is the
distribution of prizes to home listeners, selected wholly or in
part on the basis of chance, as an award for correctly solving a
given problem or answering a question. [
Footnote 2]
The rules challenged in this proceeding, §§ 3.192, 3.292, and
3.656 of the Commission's Rules and Regulations,
Page 347 U. S. 287
were designed to prevent the broadcast of such programs.
[
Footnote 3] The rules are
identically worded and apply, respectively, to standard radio
broadcasting (AM), FM radio broadcasting,
Page 347 U. S. 288
and television broadcasting. Paragraph (a) of each rule provides
that
"An application for construction permit, license, renewal of
license, or any other authorization for the operation of a
broadcast station will not be granted where the applicant proposes
to follow or continue to follow a policy or practice of
broadcasting . . ."
programs of a sort forbidden by § 1304. Paragraph (b) provides
that a program will fall within the ban
". . . if, in connection with such program, a prize consisting
of money or thing of value is awarded to any person whose selection
is dependent in whole or in part upon lot or chance, if, as a
condition of winning or competing for such prize:"
"(1) Such winner or winners are required to furnish any money or
thing of value or are required to have in their possession any
product sold, manufactured, furnished or distributed by a sponsor
of a program broadcast on the station in question; or"
"(2) Such winner or winners are required to be listening to or
viewing the program in question on a radio or television receiver;
or"
"(3) Such winner or winners are required to answer correctly a
question the answer to which is given on a program broadcast over
the station in question or where aid to answering the question
correctly is given on a program broadcast over the station in
question. For the purposes of this provision, the broadcasting of
the question to be answered over the radio station on a previous
program will be considered as an aid in answering the question
correctly; or"
"(4) Such winner or winners are required to answer the phone in
a prescribed manner or with a prescribed phrase, or are required to
write a letter in a prescribed manner or containing a prescribed
phrase, if the prescribed manner of answering the
Page 347 U. S. 289
phone or writing the letter or the prescribed phrase to be used
over the phone or in the letter (or an aid in ascertaining the
prescribed phrase or the prescribed manner of answering the phone
or writing the letter) is, or has been, broadcast over the station
in question."
After promulgation of the rules, the present actions were
brought by the appellees. [
Footnote
4] The District Court sustained the Commission's general
authority to adopt such rules, and sustained subdivision (1) of
paragraph (b) as a correct interpretation of § 1304. But, with one
dissent, the court held that subdivisions (2), (3), and (4) were
beyond the scope of § 1304, and hence invalid. The court was of the
view that § 1304 applied only to contest programs requiring
contestants to contribute a "price" or "thing of value." [
Footnote 5] We noted probable
jurisdiction and consolidated the cases for argument. [
Footnote 6]
Like the court below, we have no doubt that the Commission,
concurrently with the Department of Justice, has power to enforce §
1304. Indeed, the Commission would be remiss in its duties if it
failed, in the exercise of its licensing authority, to aid in
implementing the statute, either by general rule or by individual
decisions. [
Footnote 7]
Page 347 U. S. 290
But the Commission's power in this respect is limited by the
scope of the statute. Unless the "give-away" programs involved here
are illegal under § 1304, the Commission cannot employ the statute
to make them so by agency action. Thus, reduced to its simplest
terms, the issue before us is whether this type of program
constitutes a "lottery, gift enterprise, or similar scheme"
proscribed by § 1304.
All the parties agree that there are three essential elements of
a "lottery, gift enterprise, or similar scheme": (1) the
distribution of prizes; (2) according to chance; (3) for a
consideration. [
Footnote 8]
They also agree that prizes on the programs under review are
distributed according to
Page 347 U. S. 291
chance, but they fall out on the question of whether the home
contestant furnishes the necessary consideration.
The Commission contends that there is such consideration; in its
brief, it urges that these programs
". . . are nothing but age old lotteries in a slightly new from.
The new form results from the fact that the schemes here are
illicit appendages to legitimate advertising. The classic lottery
looked to advance cash payments by the participants as the source
of profit; the radio give-away looks to the equally material
benefits to stations and advertisers from an increased radio
audience to be exposed to advertising."
It contends that consideration in the form of money or a thing
of value is not essential, and that a commercial benefit to the
promoter satisfies the consideration requirement:
". . . Where a scheme of chance is successfully designed to reap
profits for its promoter, there will ultimately be consideration
flowing from the participants, and it is of no consequence whether
such consideration be direct or indirect. In either event, the
gambling spirit -- the lure of obtaining something for nothing or
almost nothing -- is exploited for the benefit of the promoter of
the scheme."
As against this claim, the appellees insist that something more
is required than just a benefit to the promoter; that the
participation of the home audience by merely listening to a
broadcast does not constitute the necessary consideration.
Section 1304 itself does not define the type of consideration
needed for a "lottery, gift enterprise, or similar
Page 347 U. S. 292
scheme." Nor do the postal lottery statutes from which this
language was taken. [
Footnote
9] The legislative history of § 1304 and the postal statutes is
similarly unilluminating. [
Footnote 10] For guidance, therefore, we must look
primarily to American decisions, both judicial and administrative,
construing comparable anti-lottery legislation.
Enforcing such legislation has long been a difficult task. Law
enforcement officers, federal and state, have been plagued with as
many types of lotteries as the seemingly inexhaustible ingenuity of
their promoters could devise in their efforts to circumvent the
law. When their schemes reached the courts, the decision, of
necessity,
Page 347 U. S. 293
usually turned on whether the scheme, on its own peculiar facts,
constituted a lottery. So varied have been the techniques used by
promoters to conceal the joint factors of prize, chance, and
consideration, and so clever have they been in applying these
techniques to feigned as well as legitimate business activities,
that it has often been difficult to apply the decision of one case
to the facts of another.
And so it is here. We find no decisions precisely in point on
the facts of the cases before us. The courts have defined
consideration in various ways, but, so far as we are aware, none
has ever held that a contestant's listening at home to a radio or
television program satisfies the consideration requirement.
[
Footnote 11] Some courts --
with vigorous protest from others -- have held that the requirement
is satisfied by a "raffle" scheme giving free chances to persons
who go to a store to register in order to participate in the
drawing of a prize, [
Footnote
12] and similarly by a "bank night" scheme giving free chances
to persons who
Page 347 U. S. 294
gather in front of a motion picture theatre in order to
participate in a drawing held for the primary benefit of the paid
patrons of the theatre. [
Footnote 13] But such cases differ substantially from the
cases before us. To be eligible for a prize on the "give-away"
programs involved here, not a single home contestant is required to
purchase anything or pay an admission price or leave his home to
visit the promoter's place of business; the only effort required
for participation is listening. [
Footnote 14]
We believe that it would be stretching the statute to the
breaking point to give it an interpretation that would make such
programs a crime. Particularly is this true when, through the
years, the Post Office Department and the Department of Justice
have consistently given the words "lottery, gift enterprise, or
similar scheme" a contrary administrative interpretation. Thus, the
Solicitor of the Post Office Department has repeatedly ruled that
the postal lottery laws do not preclude the mailing of circulars
advertising the type of "give-away" program here under attack.
[
Footnote 15] Similarly, the
Attorney General --
Page 347 U. S. 295
charged directly with the enforcement of federal criminal laws
-- has refused to bring criminal action against broadcasters of
such programs. [
Footnote 16]
And, in this very action, it is noteworthy that the Department of
Justice has not joined the Commission in appealing the decision
below.
Page 347 U. S. 296
It is true, as contended by the Commission, that these are not
criminal cases, but it is a criminal statute that we must
interpret. There cannot be one construction for the Federal
Communications Commission and another for the Department of
Justice. If we should give § 1304 the broad construction urged by
the Commission, the same construction would likewise apply in
criminal cases. We do not believe this construction can be
sustained. Not only does it lack support in the decided cases,
judicial and administrative, but also it would do violence to the
well established principle that penal statutes are to be construed
strictly.
It is apparent that these so-called "give-away" programs have
long been a matter of concern to the Federal Communications
Commission; that it believes these programs to be the old lottery
evil under a new guise, and that they should be struck down as
illegal devices appealing to cupidity and the gambling spirit. It
unsuccessfully sought to have the Department of Justice take
criminal action against them. [
Footnote 17] Likewise, without success, it urged Congress
to amend the law to specifically prohibit them. [
Footnote 18] The Commission now seeks to
accomplish the same result through agency regulations. In doing so,
the Commission has overstepped the boundaries of interpretation,
and hence has exceeded its rulemaking power.
Page 347 U. S. 297
Regardless of the doubts held by the Commission and others as to
the social value of the programs here under consideration, such
administrative expansion of § 1304 does not provide the remedy.
[
Footnote 19]
The judgments are
Affirmed.
MR. JUSTICE DOUGLAS took no part in the decision of these
cases.
* Together with No. 118,
Federal Communications Commission
v. National Broadcasting Co., Inc., and No. 119,
Federal
Communications Commission v. Columbia Broadcasting System,
Inc., also on appeal from the same court.
[
Footnote 1]
18 U.S.C. § 1304 (derived from former § 316 of the
Communications Act of 1934, 48 Stat. 1088-1089, repealed by 62
Stat. 862, 866):
"Whoever broadcasts by means of any radio station for which a
license is required by any law of the United States, or whoever,
operating any such station, knowingly permits the broadcasting of,
any advertisement of or information concerning any lottery, gift
enterprise, or similar scheme, offering prizes dependent in whole
or in part upon lot or chance, or any list of the prizes drawn or
awarded by means of any such lottery, gift enterprise, or scheme,
whether said list contains any part or all of such prizes, shall be
fined not more than $1,000 or imprisoned not more than one year, or
both."
"Each day's broadcasting shall constitute a separate
offense."
[
Footnote 2]
Examples of the "give-away" programs involved here are "Stop the
Music" (American Broadcasting Company), "What's My Name" (National
Broadcasting Company), and "Sing It Again" (Columbia Broadcasting
System).
"Stop the Music" is described in American's complaint in No. 117
as follows: the home contestants are called on the telephone during
the program. On the radio version, home contestants are selected at
random from telephone directories. On the television version, home
contestants are selected by lot from among those listeners who
express in advance, through postcards sent to the network, their
desire to participate. On both the radio and television versions,
however, the home contestant is not required to be listening to the
broadcast at the time he is called in order to participate. When
called, the home contestant is asked to give the title of a musical
selection that has just been played. In the event he was not
listening, or for some other reason desires to have the tune
repeated, the master of ceremonies hums or sings it to him over the
telephone. If he answers correctly, he receives a merchandise
prize; if not, he gets a less valuable "consolation" prize and a
member of the studio audience is then given an opportunity to win
the merchandise prize by identifying the same tune. If the home
contestant answers correctly, he receives, in addition to the
merchandise prize, an opportunity to identify another tune, called
the "Mystery Melody." If he identifies this tune, he wins the
"jackpot" prize, usually valued at several thousand dollars. Should
he fail to identify the "Mystery Melody," another home contestant
is called and the process is repeated. Additions to the "jackpot"
prize are made each week so long as the "Mystery Melody" remains
unidentified.
"What's My Name" is described in National's complaint in No. 118
as follows: prizes are awarded to contestants for correctly
identifying famous persons on the basis of clues given by the
master of ceremonies and in a short skit performed by professional
actors. All but one of the contestants on the program are chosen
from members of the studio audience. The remaining contestant is
chosen at random from postcards sent in by listeners, and is called
on the telephone during the program. For answering the telephone,
he is awarded a watchband manufactured by the sponsor of the
program, and is also given the opportunity to win a valuable
"jackpot" prize in Government bonds by identifying the famous
person described in the "jackpot" clues. If the home contestant
fails to make a correct identification, the amount of the "jackpot"
is added to the "jackpot" for the following week's program. The
subject of the "jackpot" clues, however, is changed every week.
"Sing It Again" is described in Columbia's complaint in No. 119
as follows: performers sing a popular song and then repeat it but
this time with parody lyrics describing some person, place, or
event. Contestants, selected at random from telephone directories,
are called by long distance telephone during the program. If the
contestant correctly identifies the subject described by the parody
lyrics, he wins a merchandise prize and an opportunity to win a
"jackpot" prize by identifying the "Phantom Voice," the voice of a
famous but unrevealed person. Clues as to the identity of the
"Phantom Voice" are given on the program and on other programs
broadcast over the same network. The "jackpot" is increased week by
week until the correct identification is made. If the home
contestant fails to identify the subject of the parody lyrics, he
receives a "consolation prize," and a member of the studio audience
is given the opportunity to answer and win the merchandise
prize.
[
Footnote 3]
47 CFR, 1952 Cum.Supp., §§ 3.192, 3.292, 3.656. The language of
the rules is broad enough to cover contest programs drawing
contestants solely from members of the studio audience. In the
court below, however, the Commission took the position that such
coverage was not intended, and the controversy was delimited to
programs involving the distribution of prizes to contestants
participating from their homes.
110 F.
Supp. 374, 381.
[
Footnote 4]
The actions were brought under § 402(a) of the Communications
Act of 1934, 48 Stat. 1093, 47 U.S.C. § 402(a); 28 U.S.C. §§ 1336,
1398, 2284, 2321-2325; and § 10 of the Administrative Procedure
Act, 60 Stat. 243, 5 U.S.C. § 1009. Pub.L.No.901, 81st Cong., 2d
Sess., 64 Stat. 1129, 5 U.S.C. § 1031, has since changed the
procedure under § 402(a), but is inapplicable to actions commenced
prior to its enactment.
[
Footnote 5]
110 F.
Supp. 374, 383.
[
Footnote 6]
346 U.S. 808.
[
Footnote 7]
The Commission is authorized by § 4(i) of the Communications Act
to "make such rules and regulations, and issue such orders, . . .
as may be necessary in the execution of its functions"; by § 303(r)
to "Make such rules and regulations and prescribe such restrictions
and conditions, not inconsistent with law, as may be necessary to
carry out the provisions of this chapter"; by § 307(a) and § 309(a)
to grant station licenses and license renewals "if public
convenience, interest, or necessity" would thereby be served; by §
312(a) to revoke a license for a violation of any regulation
authorized by the Act. 48 Stat. 1068, 47 U.S.C. § 154(i); 50 Stat.
191, 47 U.S.C. § 303(r); 48 Stat. 1083, 47 U.S.C. § 307(a); 48
Stat. 1085, 47 U.S.C. § 309(a); 48 Stat. 1086-1087, 47 U.S.C. §
312(a). The "public interest, convenience, or necessity" standard
for the issuance of licenses would seem to imply a requirement that
the applicant be law-abiding. In any event, the standard is
sufficiently broad to permit the Commission to consider the
applicant's past or proposed violation of a federal criminal
statute especially designed to bar certain conduct by operators of
radio and television stations. And if this consideration is a
proper one in individual cases, there is no reason why it may not
be stated in advance by the Commission in interpretative
regulations defining the prohibited conduct with greater clarity.
See National Broadcasting Co. v. United States,
319 U. S. 190,
319 U. S.
222-224;
cf. Southern Steamship Co. v. Labor
Board, 316 U. S. 31,
316 U. S.
46-47.
[
Footnote 8]
A typical "lottery" is a scheme in which tickets are sold and
prizes are awarded among the ticketholders by lot.
See Stone v.
Mississippi, 101 U. S. 814. A
typical "gift enterprise" differs from this in that it involves the
purchase of merchandise or other property; the purchaser receives,
in addition to the merchandise or other property, a "free" chance
in a drawing.
See Horner v. United States, 147 U.
S. 449. But whatever may be the factual differences
between a "lottery," a "gift enterprise," and a "similar scheme,"
the traditional tests of chance, prize, and consideration are
applicable to each. We are aware of no decision, federal or state,
which has distinguished among them on the basis of their legal
elements.
[
Footnote 9]
Section 1304 is one of five sections -- § 1301 through § 1305 --
which constitute "Chapter 61 -- Lotteries" of Title 18. Section
1305, added in 1950, exempts certain "fishing contests" from the
operation of the other four sections. Section 1301 prohibits the
importing or transporting of lottery tickets; § 1302, the mailing
of lottery tickets and related matter; § 1303, the participation in
lottery schemes by postmasters and postal employees; and § 1304,
the broadcasting of lottery information. These four sections use
the same terminology -- "any lottery, gift enterprise, or similar
scheme, offering prizes dependent in whole or in part upon lot or
chance." This language first appeared in the 1909 amendments to the
federal lottery laws. 35 Stat. 1129, 1130, 1136. It was adopted
verbatim in § 316 of the Communications Act of 1934, which was the
first federal statute to ban the broadcasting of lotteries. With
only slight modifications not material here, § 316 became § 1304 of
the Criminal Code in the 1948 revision of Title 18.
For the early history of lotteries in this country,
see
Spofford, Lotteries in American History at p. 171 of 1892 Report of
American Historical Association, S.Misc.Doc. No. 57, 52d Cong., 2d.
Sess.
[
Footnote 10]
See S.Rep.No.1620, 80th Cong., 2d Sess. (1948);
H.R.Rep.No. 304, 80th Cong., 1st Sess., p. A99 (1947);
S.Rep.No.781, 73d Cong., 2d Sess., p. 8 (1934); H.R.Rep.No.1850,
73d Cong., 2d Sess. (1934); H.R.Rep.No.1918, 73d Cong., 2d Sess.,
p. 49 (1934); S.Rep.No.564, 72d Cong., 1st Sess., p. 10 (1932);
H.R.Rep.No.221, 72d Cong., 1st Sess., p. 8 (1932); S.Rep.No.10,
Part 1, 60th Cong., 1st Sess., p. 23 (1909); H.R.Rep.No.2, Part 1,
60th Cong., 1st Sess., p. 22 (1909).
[
Footnote 11]
In the only previous decision on the legality of a "give-away"
program of the type involved here, a state trial court held that
the program did not constitute a lottery, because the consideration
element was lacking.
Clef, Inc. v. Peoria Broadcasting
Co., Equity No. 21368, Circuit Court of Peoria County,
Illinois (1939).
Similarly, cases under the postal lottery laws (
see
note 9 supra) appear
to be uniform in requiring a "valuable" consideration for a
"lottery, gift enterprise, or similar scheme."
See Garden City
Chamber of Commerce, Inc. v. Wagner, 100 F.
Supp. 769,
stay denied, 192 F.2d 240;
Post
Publishing Co. v. Murray, 230 F. 773,
cert. denied,
241 U.S. 675.
But cf. dictum in
Brooklyn Daily Eagle
v. Voorhies, 181 F. 579, 581-582.
[
Footnote 12]
A leading case is
Maughs v. Porter, 157 Va. 415, 161
S.E. 242;
see also State ex rel. Regez v. Blumer, 236 Wis.
129, 294 N.W. 491.
Contra, Cross v. People, 18 Colo. 321,
32 P. 821;
cf. Garden City Chamber of Commerce, Inc. v.
Wagner, 100 F.
Supp. 769,
stay denied, 192 F.2d 240. For critical
commentary on the
Maughs decision,
supra, see
Notes, 18 Va.L.Rev. 465 and 80 U. of Pa.L.Rev. 744; Pickett,
Contests and the Lottery Laws, 45 Harv.L.Rev. 1196, 1206.
[
Footnote 13]
E.g., Affiliated Enterprises, Inc. v. Waller, 1 Terry
28, 40 Del. 28, 5 A.2d 257;
Affiliated Enterprises, Inc. v.
Gantz, 86 F.2d 597.
Contra, e.g., Darlington Theatres v.
Coker, 190 S.C. 282, 2 S.E.2d 782;
Affiliated Enterprises,
Inc. v. Rock-Ola Mfg. Corp., 23 F.
Supp. 3.
[
Footnote 14]
Some of the programs involved here (
e.g., "Stop the
Music," described in
note 2
supra) do not even make this requirement. As a practical
matter, however, few home contestants on a "give-away" program
would be in a position to answer correctly the questions asked of
them unless they listened to the program.
[
Footnote 15]
In 1949, the Solicitor ruled that material relating to "Stop the
Music" (described in
note 2
supra) would be mailable. In 1950, he ruled that material
relating to a comparable contest conducted on the program "Truth or
Consequences" would be mailable. While earlier rulings on a
"give-away" program called had been to the contrary, the Solicitor
in 1949 informally advised that the material relating to the
program would be mailable. These unreported rulings were made part
of the record below.
In accord with these rulings, the Solicitor, in 1947, had
instructed local postmasters that at least "an expenditure of
substantial effort or time" was required in order to find an
enterprise to be a "lottery, gift enterprise, or similar scheme."
The instructions provided:
"In order for a prize scheme to be held in violation of this
section, it is necessary to show (in addition to the fact that the
prizes are awarded by means of lot or chance) that the
'consideration' involves, for example, the payment of money for the
purchases of merchandise, chance or admission ticket, or as payment
on an account, or requires an expenditure of substantial effort or
time.
On the other hand, if it is required merely that one's
name be registered at a store in order to be eligible for the
prize, consideration is not deemed to be present."
(Italics added.) Postal Bulletin, Feb. 13, 1947. The italicized
language,
supra, was judicially confirmed in
Garden
City Chamber of Commerce, Inc. v. Wagner, 100 F.
Supp. 769,
stay denied, 192 F.2d 240. In 1953, on the
basis of the
Garden City case and the District Court
decision in this case, the Solicitor issued new instructions
further narrowing the meaning of "an expenditure of substantial
effort or time." Postal Bulletin, June 4, 1953.
[
Footnote 16]
Apparently no prosecutions have ever been instituted under
either the former § 316 of the Communications Act or the present §
1304 of the Criminal Code. In a series of letters made part of the
record below, the Chairman of the Commission, in 1940, urged the
Attorney General to institute criminal proceedings against a number
of stations because of their broadcasting of "give-away" programs
similar to those involved here. In response to each letter, the
Attorney General advised that "careful consideration has been given
to this matter, and it has been concluded that no action is
warranted by this Department."
[
Footnote 17]
See note 16
supra.
[
Footnote 18]
In a letter made part of the record below, the Chairman of the
Commission, in 1943, urged the Senate Interstate Commerce Committee
to approve a proposed amendment to § 316 of the Communications Act,
later to become § 1304 of the Criminal Code. The proposed amendment
would have retained the existing language as to "any lottery, gift
enterprise, or similar scheme," but would have extended the
prohibition to
"any program which offers money, prizes, or other gifts to
members of the radio audience (as distinguished from the studio
audience) selected in whole or in part by lot or chance."
No action was ever taken on the proposal.
[
Footnote 19]
Cf. United States v. Halseth, 342 U.
S. 277,
342 U. S.
280-281.