State v. Willis

Peters, C. J.

The defendant demurs to an indictment which alleges against him participation in a lottery nuisance.

It is objected that it is not stated, either in or upon the indictment, who. the prosecutor is. The law apportions the penalty between the prosecutor and the town where the offence is committed. If the law was ever critical enough to destroy an indictment because it did not disclose the name of the prosecutor or informer, when such an averment requires no proof and has nothing to do with the guilt or innocence of the person prosecuted, it was intended, by the decision in State v. Smith, 64 Maine, 423, to dispense with such useless technicality.

It is contended that each count is ill for duplicity, because the allegation is that the defendant was engaged in" a lottery, scheme or device of chance. ” There is no contradiction in the terms. *73 They are descriptive of only one tiling, — the pleader trying to describe the offence by as apt a word as possible. The word lottery has no technical meaning. A lottery is nothing more or less than a scheme or device of chance. People v. Noelke, 94 N. Y. 137 .

The indictment avers that the defendant was concerned in a lottery by printing, publishing and circulating an advertisment of it; and also in other ways. It is argued that this is ill for duplicity. The argument is based upon a misconception of the design and scope of the law against lotteries. The statute (E. S., c. 128, § 13,) does not establish numerous independent offences, — it establishes but one offence. It declares " every lottery, scheme or device of chance” to be a nuisance. The offence to be alleged and proved is nuisance. The statute particularizes some of the modes in which the offence may be committed, and also declares generally that whoever aids in a lottery or is connected therewith shall be punished. It is but one offence and the same punishment, no matter in what form the guilty participation consists. There are not as many distinct offences as there may be forms of the offence. The indictment describes the means by which the defendant’s guilt may be proved. The same rule applies as in indictments for liquor nuisances. State v. Lang, 63 Maine, 215; Commonwealth v. Harris, 13 Allen at p. 539.

The indictment gives the nature of the scheme by setting out the advertisement by copy; by allowing it to speak for itself. This mode of pleading is not unusual. But it is denied by counsel that the paper indicates a game of chance. It is contended that the word chance in the paper means opportunity. We do not concur in this interpretation. It is conceded that the careless reader might see in the advertisement a game of chance. But that would be so, only because the meaning is there to bo seen. In such case the reader gets the author’s real meaning, which must be the same for all persons. However disguised by indirect or deceptive expression, the paper, as a whole, discloses a lottery. If it were not so, readers would not become buyers. It informs its patrons that every subscriber is sure to get a present, and the *74 presents áre of various values. Assurance is given that the presents will be " -awarded fairly. ” How can presents of unequal Value be fairly awarded unless by some lot or chance ? A purchaser or subscriber receives for his money "a numbered receipt.” What can be the purpose of numbers if all numbers are favored alike?- Each number will take " a prize, ” and has "a chance to win” a very valuable one. Of course all cannot win the highest prize or present; It is not an opportunity to win, so much as it is an opportunity for a chance to win. It is not an easy thing for a notice to have the effect of advertising vice to one and virtueto another.

The first Count in the indictment may not be good. It alleges the defendant’s complicity in the nuisance to consist of a notice inserted in a newspaper published in New York. It charges that the newspaper was Circulated in Augusta, but it is not said when or by whom, or'whether the defendant had any knowledge of that fact or not. See S tate v. Paul, 69 Maine, 215.

The remaining counts are sufficient. The most of an objection is, that the words "then and there” are not employed in them. The use of the phrase would have made the declaration more finished. The second count charges that the defendant at Augusta, on a-day named, was unlawfully concerned in a lottery (described) " by selling to one Harry May one ticket, ” and so on. It is contended that, to be correct, it should read, " by then and there selling ” the ticket described. In a capital case the omission would probably bó considered fatal. '' But the rule requiring time ' and place to be repeated to the traversable averments is not so much regarded in indictments for inferior offences as in bases where the life of the prisoner is in danger. PBisk. Stat; Pro; § 413, and cases. The sense here is by no means uncertain. There would be more ground for the objection if a series' of distinct overt acts were alleged, all essential to the commission of the offence. Commonwealth v. Doherty, 10 Cush. 52 . The words then and there- need not be repeated to an averment which merely declares a legal conclusion. The averment of being concerned in a lottery was of that nature, although preceding other allegation, the potent fact being the sale of a ticket. *75 Commonwealth v. Sullivan, 6 Gray, 477 ; Commonwealth v. Langley, 14 Gray, 21 .

In the last counts the ticket is set out in its own words. It may not on its face appear to be a ticket. Still, it may be proved to be such. It is averred that it is a ticket. The advertisement proves it. State v. Ochsner, 9 Mo. App. 216 .

Demurrer sustained as to first count only.

WaltoN, Danforth, Libbey, Emery and Foster, JJ., concurred.