« AnteriorContinuar »
the makers. Subsequently the makers com- and that, Bingham & Co. having acted upon plained tbat the pote was only given as a guar- the faith of Ibese representations, and having apty to the payee, who had become bankrupt. parted with $5,000 on the strength thereof, the Thereupon ibe holder refunded the money and Bank is estopped from asserting its defense. took up the note, upon the express agreement The referee omitted an important feature of the that the makers would pay any amount which contract of certification. The Bank did certify the holders should fail to make out of the that it had the money, would retain it and apbankrupt payee's property. The makers were ply it in payment, provided the check sbould held liable for the deficiency.
be indorsed by the payee. Lynch v. First Nat. Hughes v. Nelson did not involve the precise Bank, supra. question here presented. The views expressed, If the check had been transferred to plaintiffs however, are in contlict with some of the cases by indorsement, the defendant would have had cited; but we regard it, in such respect, as no defense, not because of the doctrine of esagainst the weighi of authority.
toppel, but upon principles especially applicaFreund v. Importers & T. Nat. Bank, supra, ble to negotiable instruments. Mechanics Bank does not ail the plaintiff. In that case it was v. New York & N. H. R. Co. 13 N. Y. 633. held that the certitication by the bank of a If the maker or acceptor could ever be held check in the hands of a bolder who bad pur to be estopped by reason of representations conchased it for value from the payee, but which tained in a negoiiable instrument, le certainly had not been indorsed by him, rendered the could not be in the absence of a compliance bank liable to such boller for the amount there with the provisions upou which he bad repreof. By accepting the check the bank took, as sented that bis liability should depend. But it it bad the right to do, the risk of the title wbich is well settled that the maker or acceptor of a the bolder claimed to have acquired from the negotiable instrument is not estopped from conpayee. In such case the bank enters into con- testing its validity because of representations iract with the boller by which it accipts the contained in the instrument. In such cases an check and promises to pay it to the bolder, not- estoppel can only be founded upon some sepawithstanding it lacks the indorsement provided rate and distinci writing or staiement. Clark for; and it was accordingly beld that it was li- v. Sisson, 22 N. Y. 312; Bush v. Lathrop, Id. able upon such acceptance, upon the same 535; Moore v. Metropolitan Nat. Bank, 55 N. principles that control the liabilities of otber Y. 41; Fairbanks v. Sargent, 104 N. Y. 108, 5 acceptors of commercial paper. Lynch v. First Cent. Rep. 919; Mechanics Bank v. New York Nat. Bank, 107 N. Y. 183, 9 Ceut. Rep. 564. & N. 11. R. Co. supra.
But one question remains. The learned ref- The views expressed especially relate to the eree beld, and in that respect he was sustained action of Bingbam & Co. against the Bank, by the general term, that the Bank by its cer- and call for a reversal of the judgment. tification represented to everyone that Brown We are of the opinion that the action brought bad on deposit with it $5,000; ibat such amount by the Bank against Biogbam & Co. to recover had been set apart for the satisfaction of the possession of the check cannot be maintained, check, and that it should be so applied when and in that case the judgment should be affirmed. ever the check should be presented for payment; All concur, except Haight, J., not sitting.
ALABAMA SUPREME COURT.
YELLOWSTONE KIT, Appt.,
lotteries, embraces only schemes in which a valu. able consideration of some kind is paid directly
or indirectly for the chance to draw a prize. STATE OF ALABAMA.
2. Distributing prizes by lot or chance to (....Ala.....)
bolders of tickets given away is not carrying on
a lottery, although it may be done with the view 1. The word “lottery," within the of drawing a large crowd together in the bope of meaning of statutes against carrying on profit from such of them as may choose to buy NOTE.- Lottery defined
A game in which a price is paid for the chance of
a prize is a lottery. Com. v. Sullivan, 5 New Eng. A lottery is a scheme by which a result is reached Rep. 713, 146 Mass. 142: Com. v. Wright, 137 Mass. 250. by some action or means taken, in which result
The sale of "policies" entitling the purchaser to map's chuice or will has no part, and which human receive money on the drawing of numbers in a reason, foresight, suga city or design cannot enable lottery is the sale of a lottery ticket. Smith v. him to know or determine until the same has been State, 10 Cent. Rep. 527, 68 Md. 168. accoinplisbed. See note to People v. Elliott (Mich.) 3 L. R. A. 403, for a full discussion of the offense.
What constitutes a “lottery." Where for a pecuniary consideration it is determined by lot or chance, according to some scheme, The word " lottery" imports a game of hazard. wbat and how much he who pays the money is to France v. State, 6 Baxt. 478. bave for it, it is a lottery. Hull v. Ruggles, 56 N. Y. Auction pools," " French Pools " and " combi424; State v. Clarke, 33 N. H. 305; Wilkioson v. Gill, nation pools" upon horse races are "lotteries,” 74 N. Y. 66.
within the New Jersey statutes. State v. Lovell, It is a scheme for the distribution of prizes by 39 N. J. L. 458. chance (Conn. v. Man lerfield, 8 Pbila. 459; State v. Where chances are sold and the distribution of Lovell, 39 N. J. L. 461; Randle v. State, 42 Tex. 585), prizes is awarded by lot, it constitutes a “lottery." a valuable consideration being given for the chance Buckalew v. State, 62 Ala. 334; Bell v. State, 5 Sneed, to draw the prize. United States v. Olney, 1507. Deady, 464, 1 Abb. U. 8. 275. See Anderson, Law It is not necessary that the lot should be actually Dict. Lottery, to which we are indebied.
cast or drawn by the managers, or that the party
See also 8 L. R. A. 671; 11 L. R. A. 130; 31 L. R. A. 792, 835.
medicines from the distributor, or tickets to per- Defendant distributed articles of value by formances given by him, or to pay for scats in lot cr chavce, but holders of tickets paid no the tent where the prizes are selected, where no consideration of any kind for their tickets; in payment for any purpose is necessary as a condi- other words, no consideration of any kind was tion of receiving a prize.
paid for the right of participating in the dis(January 31, 1890.)
tribution of prizes. Such a scheme is not a
lottery within the letter or spirit of $ 4068 of A condena ostalese.
the City Court of Mobile rendered against lnited States v. Olney, 1 Abb. (U. 8.) 275. bim after trial of an indictment charging bim To constitute a lottery, there must be two with tbe ofl'ense of setting up or being con- elements: first, there must be something paid cerned in setting up or carrying on a lottery. for the ticket or chance to draw a prize; and Reversed
second, there must be a distribution of prizes After the evidence was all in defendant re- by lot or chance. quested the court lo instruct the jury tbat, if Almslouse v. American Art Union, 7 N. Y. they belie red the evidence, they must find him 228; Bishop, Stat. Cr. § 952; State v. Shorts, not guilt, The court refused to give such 32 N. J. L. 398; Boyd v. State, 61 Ala. 177; charge anc aefendant excepted.
Buckalero v. State, 62 Ala. 334; Esluta v. State, Furtber facts appear in the opinion. 44 Ala, 406; Salomon v. Stute, 28 Ala. 83;
Mexsrs. Mcuirros & Lewig and B. M. Kohin v. koehler, 96 N. Y. 362, 48 Am. Rep. Aller. fo“ appellant:
628; Com. v. Wright, 187 Mass. 250, 50 Am.
paying abould personall: participate in the draw-| chance is a lottery. Randle v. State, 42 Tex, 580. ing. Fleming v. Biile, 3 Or. 286.
See Hull v. Ruggles, 56 N. Y. 424; Swain v. Bussell, The distribution of prizes by lot to the bolders of 10 Ind. 438. tickets given to sul.scribers to a newspaper is a
A scheme for the disposal of two lots where the “lottery" scheme. State v. Mumford, 73 Mo. 647. chance of obtaining a reserved or prize lot forms
A scheme of a benevolent association to provide part of the inducement of the purchase is a lottery. for the care and maintenance of the state insane, United Staies v. Olney, I Abb. (U. S.) 275. to distribute among ticket-holders to a public enter- Seliing candy in boxes, each box represented as tainment prize by rattle or other similar schemes, containing a prize, the purchaser to select his box, is a “lottery." State v. Overton, 16 Nev. 136. is in the nature of a lottery. Holoman v. State, 2
A sale of envelopes containing, with other tbinge, Tex. App. 610; Eubanks v. State, 3 Heisk. 488; Hull a card indicating an article to be purchased for a v. Ruggles, 56 N. Y. 424. eum of money is a violation of the Star ute against The sule of packages of candy, in some of which sale of lottery tickets. Dunn v. People, 40 III 465. coupons were placed payable at the counter on
The issue of bonds by a foreign government to presentation, is a distribution of prizes by chance, obtain a loan, the government obliging itself to pay and leuce a lottery. Com. v. Sherid (Pa.) 10 Puila. any additional eum over the principal and interest, 203; State v. Lumsuen, 89 N. C. 572. and the premium named, in case the number of the Mailing circulars an offense under U. S. Rev. Stat. bond purchased should draw a prize, is not an “ille
The mailing of circulars describing a scheine for gal lottery," within the New York statutee. Kohl drawing prizes by chance or by lot, by which a v. Koebler, 96 N. Y. 362.
city or foreign government induces the purchase A sale of certificates of subscription to a scien- of its bonds, is a mailing of lottery circulars, and tific and art association, which entitles holders to as such unlawful. Uuited States v. Zeisler, 30 Fed. any articies wbich may be a warded to them by lot, Rep. 499. is not a “lottery.” Boyd v. Slate, 61 Ala. 177. See The offense is complete though the circulars are Tuscaloosa Scientific & Art Asso. y State, 58 Ala. sent in reply to a detective's decoy letter. United 64.
States v. Moore, 19 Fed. Rep. 39. Keno, although a game of cbance, and therefore But 8 3894, U.S. Rev. Stat., does not apply to the unlawful, is not a lottery." Eslava v. State, 44 naked sending to the postoffice (United States . Ala. 406; United States v. Hornibrook, 2 Dill. 229. Dauphin, 20 Fed. Rep, 6:25); for before the custody of
A rafile is not a “lottery" in the sense of the the letter by the postoffice or its agents, and after South Carolina statute. State v. Pinchback, 2 Mill. i their voluntary termination of such custody, the Congt. Rep. (S. C.) 128.
rights of the proprietor ure under the protection of For earlier decisions, see Com. v. Thacher, 97 Mass. the local law. Ibid. 583; Den v. Shotwell, 33 N. J. L. 465, 24 N. J. L. 789; A letter addressed to a fictitious name is within Rolfe v. Delmar, 7 Robt. 80.
the statute probibiting the deposit in the mail of a Gift enterprise, a lottery.
lottery circular. United States v. Duff, 19 Blatcuf. 9. A gift enterprise is a lottery. State v. Bryant, 74 United States v. Noelke, 17 Blatchf. 554.
As to distinction between letier and circular, see N. C. 207; State v. Shorts, 32 N. J. L. 398. A ticket to admit to a grand concert and to what- Postmaster-General power to return registered let.
The provisions of U. S. Rev. Stat., giving to the ever gift may be awarded to its number is a lotters and suspend payment of money orders ad. tery ticket. Neyley v. Devlin, 12 Abb. Pr. N. 8. dressed to those conducting lotteries, are constitu. 210; Er parle Blanchard, 9 Nev. 101. A ticket given for $5 in payment for a steel en tional. Dauphin v. Key, MacArth. & Mack. 23.
An indictment for sending "500 circulars ** graving and admission to entertainments at tbe close of which money in presents was to be discharges but one offense. United States v. Patty, o
Biss. 429. tributed to the purchasers, is a scheme for the distribution of prizes by chance. Thomas v: People, ferent days, it is bad for duplicity. Ibid.
But where it charges them as delivered on dif59 Ill. 160; Almshouse v. American Art Union, 32 How. Pr. 341, 7 N. Y. 228; People v. Ameri an Art
Legislation on the subject of lotteries. Union, 7 N. Y. 240; People v. American Art Union, There is no law in Michigan which probibits or 13 Barb. Bernett v. American Art Union, 5 punishes the receiving of a prize diawn in a lottery, Sandr. 614.
if it is voluntarily paid. People v. Watson, 75 Mich. Every scheme for the distribution of prizes by 1 582.
Rep. 306; Den v. Shotwell, 23 N. J. L. 465; | blanks by chance; a game of bazard in which Johnson v. State, 83 Ala. 65.
small sums are ventured for the chance of Messrs. William L. Martin and Leslie obtaining a larger value." B. Sheldon for the State.
So the American Cyclopedia thus defines
a lottery: “A sort of gaming contract, by which, Somerville, J., delivered the opinion of for a valuable consideration, one may, by favor the court:
of the lot, obiaio a prize of a value superior The defendant was convicted of tbe offense to the amount of value of that which be risks." of carrying on a loutcry in this State. The In Buchalein v. State, 62 Ala. 334, it was said, case turns largely on what is to be taken as after citing Webster's definition, that “wberea proper definition of the word “lottery,” ever chances are sold, and the distribution of within the meaning of the Statute and the prizes determined by lot, this, it would seem, Constitution of Alabama. Code 1886, $$ 4063, is a lottery. This, we think, is the popular 4069; Coust. 1875, art. 4, § 28. The word can acceptation of the term.” not be regarded as baving any technical or Io Bisliop on Statutory Crimes, $ 952, it is legal signitication diderent from the popular said: “A loitery may be defined to be any one. It is defined by Webster as “a dis- scheme whereby onc, in paying money or other tribution of prizes by lot or chance." This valuable thing to another, becomes entitled detinition is substantially adopted by Bouvier to receive from him such a return in value, or and Rapalje in their Law Dictionaries. Wor nothing, as some formula of chance may de cester debues it as “a distribution of prizes and termwe."
But, under How. Stat. (Mich.), 89031, setting up, 401; Rigis V. Adams, 12 Iod. 199; Lucas v. McBlair, and promoting a lottery for money is prohibited. 12 Gill & J. 1. People v. Elliott, 3 L. R. A. 40%, and noite.
A scheme to aid a benevolent association in so far The Louisiana Constitution of 1879, expressly as it authorized a lottery or allowed tue sale of lotrecognizing as a contract, except as to its monopoly tery tickets is unconstitutional. Ex parte Blanclause, the charter of the Louisiana State Lottery chard, 9 Nev. 101. See State v. Phalen, 3 Harr. (Del.) Company wbich had been previously repen led, re- 441. vived that cbarter as therein modified. New Orleans In Texas the Constitution prohibits the authorv. Houston, 119 U. S. 285 (30 L. ed. 401).
ization of a lottery by the State, and tbe sale of lot. The clsise in the charter, limiting taxation upon tery tickets within the State, and renders nugatory It to $40,000 per annum, is thus by constitutional legislation as to a gift enterprise and the license tax provision made a contract which the Legislature imposed on such business. Randle v. State, 42 Tex. cannot impair, although the subject matter would 580. be otherwise within the police power of the State.
Under the Tennessee Code the rending or atIbid.
tempt to vend a lottery ticket is made a misdeWhere the Legiclature grants a lottery franchise, meanor, and a due bill given by an agent to his and authorizes its sale, the purchaser may for a principal on account of money received for sale of valuable consideration permit others to enjoy a tickets canuot be enforced. Lanaban v. Pattison, part of the protits, but cannot assign the franchise 1 Flipp. 410. 80 as to enable each asg iynee to conduct a separate Euly cases construing statutory prohibitions lottery. Lawrence v. Sun mons (Ky.)1 L. R. A. 172. of lotteries and sale of lottery tickets. Terry k.
See, as to the history of legislation on this sub- Olcott, 4 Conn. 442; Williams v. Woodman, 8 Pick. Ject, Anderson, Luw Dict. Lottery, 640.
78; Com. v. Lottery Tickets, 5 Cush. 369; Com. v. Lotteries, being injurious to the public morals, Harris, 13 Allen, 534; Freleigh v. State, 8 Mo. 606; cannot be made the subject of a contract; and State v. Sterling, 8 M1. 697; Ridgeway v. Under. hence a lottery franchise is not under the protec- wood, 4 Wash. C. C. 129; Van Doren v. Staats, 3 N. tion of the Federal Coostitution (Moore v. Stuite, J. L 887; Hunt v. Knickerbacker, 5 Johns. 327; 48 Miss. 147); nor the State Constitution. Mississippi Mount v. Waite, 7 Jobns. 434; Butler v. Kent, 19 8ciety of Arts and Sciences v. Musgrove, 44 Miss. Johns. 23; McLaughlin v. Waite, 9 Cow. 670: People 820.
v. Waruer, 4 Barb. 314; Phalen v. Com. 1 Rob. (Va.) The charter of a lottery company is not within 713. the constitutional protection as to the impairment of the ovligation of contracts. Stone v, Mississippi, Authorization of lotteries, and regulation by 101 U. 8.814 6:35 L. ed. 1079).
statute. The right to suppress lotteries is governmental, to be exercised at all times in the discretion of the No uncertain or doubtful terms or provisions in goverument. Ibid.; Boyd v. Alabama, 14 U. S. 615 a charter will be construed to authorize a lottery (24 L. ed. 302).
scheme. Boyd v. State, 53 Ala. 601. The contracts which the Constitution protects An express authorization by a constitutional law are such as relate tu property rights, not govern- to maintain a lottery may be exercised although the mental rights. Buyri v. Alabama, supra.
general laws probibit lotteries. Broadbent v. TusAn Act granting to commissioners the right to kaloosa Scientific & Art Asso. 45 Ala. 170. seli lottery tickets to raise a fund for the repair A lottery frunchise expires when the amount to of a turnpike is not illimitable as to time. Phalen be raised is provided for by contract, whether the v. Virginia, 49 U. 8. 8 How. 163 (12 L. ed. 1000). wbole amouut has been paid to the beneficiary or
pot. State v. France, 72 Mo. 41. See Phulen v. State, Constitutional and slatutory prohibition.
12 Gill & J. 18. A constitutional provision inhibiting lotteries or In such an association the designation of things the sale of lottery tickets is probibitive on those which may be distributed by lot excludes other subjects. State v. Woodward, 89 Ind. 110.
things not comprehended in the franchise; bence Such prohibition is within the exercise of the po- money cannot be substituted for the award drawn. lice power, in the interest of public morals, and is Marks v. State, 45 Ala. 38. constitujonal. Ibid., following Stone v. Mississippi, The pupitory section of the Louisiana Act as to 101 U. S. 814 (25 L. ed. 1079), and overruling Kellum sale of lottery tickets was not abrogated by the v. State, 66 Ind. 688. See Whitney v. State, 10 Ind. Constitution of that State declaring void all laws
In Full v. Ruggles, 56 N. Y. 424, the New Union, 7 N. Y. 228;_Ehgrott v. New York, 96 York Court of Appeals adopts the following N. Y. 264, 48 Am. Rep. 622; Bell v. Stite, 5 as the result of the accepted definitions: Sneed, 507; Com. v. Thacher, 97 Mass. 583. “Wbere a pecuniary consideration is paid, and There is no law which probibits the grait is to be determined by lot or chance, accord-tuitous distribution of one's property by lot or ing to some scheme beld out to the public, chance. If the distribution is a pure gift or what and how much he who pays the money bounty, and not in name or pretense merely, is 10 receive for it, that is a lottery." This wbich is designed to evade the law,-if it be detinition is approved in Wilkinson v Gill, 74 N. entirely unsupported by any valuable cousidY. 63, as the popular meaning of the word, eration moving from the taker,-ibere is and one proper to be adopted with a view of nothing in this mode of conferring it which is remedying the mischief intended to be pre- violative of the policy of our Statutes condemnvented by the Statutes prohibiting lotteries, ing lotteries or gaming. We may go fuitber, and it is said: “Every loitery bas the charac. and say that there would seem to be nothing teristics of a wager or bet, although every bet is contrary to public policy, or per se morally not a lottery."
wrong, in the determination of rights by lot. It may be safely asserted, as the result of the A member of the College of Christian Aposadjudged cases, that the species of lottery, the tles, as sacred history informs us, was once carı ying on of which is inlended to be pro- chosen by lol. And under the law of this State hibited as criminal by the various laws of ibis a tie vote on a contested election of any state country, embraces only schemes in which a oficer is required to be setiled in the same mode. valuable consideration of some kind is paid, So our statutes authorize a distribution of directly or indirectly, for the chance to draw property owned by joint tenants to be made a prize. United Stat : v. Olney, 1 Deady, 461, by lot under tbe direction of the judge of pro1 Abb. (U. S.) 275; Almshouse v. Ainerican Art. bate. These are not the evils against wbich
contrary to Its provisions. State v. First Dist.
Kentucky. Judge, 32 La. Ann. 719.
Clarkev. Havens, 1 A. K. Marsh. 198; Wendover v. An Act passed by a Territorial Legislature au- Lexington, 15 B. Mon. 258: Gregory v. Shelby Cole thorizing money to be raised by lottery to procure lege, 2 Met. (Ky.) 589. Jameson v. Gregory, 4 Met. a library and apparatus for the university has never (Ky.) 363. been repealed and is valid. Kellum v. State, 66
Thomas v. Mahan, 4 Me. 513 (see 7 Me. 502); Bishop of Washington to authorize lotteries does not authorize it to force the sale of the tickets in States
Marylando where such sales are prohibited. Cobens v. Virgi. Yates v. O'Neale, 3 Gil & J. 253; Broadbent v. nia, 19 U. S. 6 Wheat. 264 (5 L. ed. 257).
State, 7 Md. 416; State v. Wolfe. 3 Har. & J. 24; City Such power cannot be exercised so as to discharge Bank v. Smith, 3 Gill & J. 265; Lucas v. Lottery the corporation from its liability in any manner Comrs. Il Gill & J. 490; Heckart v. McPbail, 12 whatever. Clark v. Washington, 25 0. 8.12 Wheat. Md. 96. 406 L. ed. 544).
Massachusetts. Where the conduct of the managers is bona fide
Gilbert v. Williams, 8 Mass. 476; Homer v. White a mere irregularity in the drawing will not vitiate man, 15 Mase. 132.
Missouri. it. Brent v. Davis, 23 U. S. 10 Wheat. 395 (6 L. ed. 350).
Lottery allowed to raise money for a charity. The corporation having promised to pay the State v. Hawthorn, 9 Mo. 389. whole prize on wbole tickets was not liable for a
New Hampshire. prize drawn on a balf ticket. A party cannot by
Roby v. West, 4 N. 8. 285; Udall v. Metcalf, 5 N. his own act split a contract and make the promisor H. 396. liable to holders for fragments of a share. Shank
Pennsylvania. land v. Washington, 30 U. S. 5 Pet, 390 (8 L en. 166).
Passmore v. Mott, 2 Binn. 201; Neilson v. Mott, 8 The person entitled to a prize has no recourse against the bond given by the manager for a true Hughes, 2 Browne (Pa.) 48; Primer v. McConnell, re
Binn. 301; Biddis v. James, 6 Bino. 3!1; Barton v. and impartial execution of his duty. Washington ferred to in 6 Binn. 329; Seidenbender v. Charles, 4 v. Youny, 23 U. S. 10 Wheat. 406 (6 L. ed. 352).
Where a party fraudulently draws his owo ticket Serg. & R. 151; Yohe v. Robertson, 2 Whart. 155; he cannot defend his fraud on the ground that the Snyder v. Wolfiey, 8 Serg. & R. 326: Dows v. White, lottery was unlawful. Catts v. Phalen, 43 U. S. 2
2 Miles (Pa.) 140; McNight v. Biesecker, 13 Pa. 323, How. 376 (11 L. ed. 308).
South Carolina A law imposing a special tax for selling lottery Waddle v. Pickensville Lottery, 2 Nott & Mca. tickets, and, for nou payment, liability to indict. 550, State v. Allen, 2 McCord, L. 55. ment, is constitutional. License Tax Cases, 72 U. 8.
Vermont 5 Wall. 46.2 18 L. ed. 497).
May v. Brownell, 3 VL 469; Case v. Riker, 10 Vt See early decisions on statutes of the various states: 482; Catts v. Phalen, 43 U. S. 2 How. 376 (L.L. ed. Connecticut.
Virginia. Barnum v. Barnum, 9 Conn. 242; Phalen v. Clark, 19 Coon. 421.
Madison v. Vaughan, 5 Call, 562; Mayo v. Murchia,
3 Munf. 358; Com. v. Chubb, 5 Rand. 715. Delaware. Vannini v. Paine, 1 Harr. (Del.) 65; Gregory v. Action for recovery back of money paid and for the Bailey, 4 Harr. (Del.) 256; Rogers v. Builey, 4 Harr.
penalty. (Del.) 256.
The statute authorizing the purchaser to recover Georgia
back double the sum paid and double cost, it is not Green v. Barnwell, 11 Ga. 282; McKenny v. Compo necessary to sbow that the money paid was remite ton, 18 Ga. 170; Swan v. State, 29 Ga. 618.
ted to the proprietors (Grover v. Morris, 73 N.Y.4735 the law is directed. The gratuitous distribution It is in the light of these facts, and the mis of money or property by lot has never pre- chief thus intended to be remedied, that we vailed to such extent as jo require police reg. must construe our statutory and constitutional ulation at the bands of the State, nor, so long probibitions against lotteries and devices in the as human nature remains as it is now is and nature of lotteries. Ehrgott v. Mayor, 96 N. has been for so many thousand years, is it like. Y. 264, 48 Am. Rep. 622. ly ever to be otlerwise. Tbe history of lot- The cases on this subject are very numerous, teries for the past three centuries in England, and while the courts have shown a general and for nearly a hundred years in America, disposition to bring within the term "lottery" shows that they have been schemes for the dis- every species of gaming involving a distributribution of money or property by lot in which tion of prizes by lot or chance, and which chances were sold for money, either directly, or comes within the miscbief to be remedied, through some cunning device. The evil flow. regarding always the substance and not the ing from them bas been tbe cultivation of the semblance of things so as to prevent evasions gambling spirit,--the bazarding of money of the law,- we find no decision in which the with the hope by chance of obtaining a larger element of a valuable consideration parted sum,—often stimulating an inordinale love of with, directly or indirectly, by the purchaser gain, arousing die most violent passions of of a chance, does not enter into the transaction. one's baser nature, sometimes tempting the Buchaleu v. Stute, 62 Ala. 334; Slate v. Brygambler to risk all be possesses on the turn of ant, 74 N. C. 207; Com. v. Wright, 137 Mass. a single card or cast of a single die, aud “tend 250, 50 Am. Rep. 306; Slate v. Clarke, 33 N. ing, as centuries of human experience now fully H. 329, 66 Am. Dec. 723; State v. Shorts, 32 attest, to men sicancy and idleness on the one N. J. L. 398, 90 Am. Dec. 668; Wilkinson v. band, and moral profligacy and debauchery Gill, 74 N. Y. 63, 30 Am. Rep. 264: Almshouse on the other.” Johnson v. state, 83 Ala. 65. V, American Art Union, 7 N. Y. 228; State v.
Gray v. Roberts, 2 A. K. Marsb. 208); and the fact, a lottery or disposal of any estate by lottery is made that the lottery was authorized by the law of an- subject to a fine. State v. Randle, 41 Tex. 208. other State will not make it other than an illegal The supreme court has no jurisdiction over cases lottery here. Grover v. Morris, 73 N. Y. 473. See of conviction as to lotteries. Slitte v. Houston, early cases: Day v. Siate, 7 Gill, 321; People v. Gul-0 La. Ann. 1174. bert, Anth. (N. Y.) 191. A sale of slips of paper with numbers on them,
For publishing lottery scheme which if drawn would entitle the holder to a prize, To advertise a lottery is unlawful where adveris in fact a sule of an interest in or “portion of an tised although the prizes are drawn in a State whero illegal lottery" within the statute. Wukinson v. it 18 lawful. State v. Moore, 63 N. H. 9. See Com, v. Gill, 10 Hun, 156.
Clapp, 5 Pick. 41; Com. v. Hooper, Id. 42; Com. v. 'To establish the illegality of the lotteries at the Harris, 13 Allen, 534; People v. Charles, 3 Denio, 212, time of the sale, it may be shown that previous and 610; Charles v. People, 1 N. Y. 180. subsequent thereto defendants had engaged in an An advertisement by dealers, that on a certain unlawful business of which the acts complained of day they will give purchasers of their goods are a part. Ruediger v. Simmons, 14 Abb. Pr. 256. guessing nearest the number of beans in a glass
The complaint must set forth the particular dates globe in their window a gold watch is an advertise ard purchases. Ibid.
ment of a lottery. Hudelson v. State, 94 lod. 426. A lottery not for the purpose of disposing of On an indictment for publisbing a lottery the property is not illegal. People v. Payne, 3 Denio, evidence must show the facts constituting the 88.
offense, or that the acts were done by permission "Playing policy" i. e. selecting certain numbers or direction of the principal of the publication, entitling the payer to prizes, is the purchase of an b re a corporation. People v. England, 27 Hun, interest in a lottery for which double the sum paid 139, may be recovere, back. Wilkinson v. Gil, 74 N.
For sale of lottery ticketa Y. 63.
The sale of a lottery ticket is illegal under the Prosecution for maintaining a lottery.
Constitution and statutes of Missouri, although the The operation of an unauthorized lottery in a ticket bad already drawn the prize. The contract punishable offense under Kentucky Gen. Stat. is both malum prohilitum and against public policy, Miller v. Com. 13 Bush, 731.
and equity will not interfere. Kitchen v. GreeneIn Alabama it is an indictable offense. Salomon baum, 61 Mo.110. 7. State, 27 Ala. 26.
A sale of three tickets to one person constitutes The indictment for selling lottery policies must but one offense. Fontaine v. State, 6 Baxt. 514. show upon its fuce that the lottery was illegal. In the indictment for sale of lottery tickets it is Com. v. Manderfield (Pa.) 8 Phila. 457, 1 Pa Ley. pot essential to set forth the purpose of the lottery. Gaz. 37.
People v. Noelke, 94 N. Y. 137, 29 Hun, 461. But the words "prize in a lottery" are suficient The information need not give the name of the for this purpose. lbid.; compare Crews v. State, 38 purchaser. State v. Yoke, 9 Mo. App. 552. Ind. 28.
He is not an accomplice of the seller. People v. That defendant had been previously engaged in Noelke, supra. the lottery business, and that a paper was found in An indictment is not vitiated by failure to set out his pocket heud-d "Result of race 48," is not suit. the ticket or the place, name or purpose of the cient. State v. Sellver, 17 Mo. App. 39.
drawing. France v. State, 6 Baxt. 478. Upon an issue ir.volving the right to maintain a Where the indictment sets out the instrument lottery the burden is on the party asserting the sold, it is sufficient as to the nature of the lottery right to show that the amount authorized has not or the manner of accomplishment of its object. yet been raised. Com. v. Frankfort, 13 Bush, 185; Dunn v. People, 27 Hun, 272. Com. v. Bierman, Id. 345; Com. v. Bull. Id. 656; Giving a general description of the ticket, and Diller v. Com. Id. 731.
averring that the sale was unlawful, is sufficiente Under the Texas Penal Code the establishment of Com. v. Bierman, 13 Bush, 345.