The daily exchange. [volume] (Baltimore, Md.) 1858-1861, 1859-06-25
DECISION OF THE HON. JUDGE STUMP
-.., ON THE LOTTERY OUESTION -.

DECISION OF THE HON. JUDGE STUMP
ON THE LOTTERY QUESTION:
State of Maryland vs. John Clark indicted for
selling Etforeign'' lottery tickets
In this case the traverser submits on the plea of
cm to the decision of the Court or both the law
and facts to be tried by the Court without a
jury.
The indictment consists of eight counts The
first two framed under the first section of the act of
Assembly of 1856, chap. 1876, entitled San act
effectually to prevent gambling" The first count
under this act charges the traverser with using a
certain room in the city of Baltimore for gambling
on the 2Sth of May, 1859. -
The second count under the first section of the act
OF 1856 charged him with keeping a certain other
room there situated to be then and there used for
gambling.
The third count charges the traverser (John
Clark with unlawfully selling to John S. Pointer
the 2Sth day of May 1859, certain foreign lot
terry ticket, to wit: ticket in the Sussex County
Lottery of Delaware, which lottery is foreign lot
terry. The said ticket is set in figures and pro-
duced by the informer, and witness, as evidence
in Court This third count, in part, is based upon
the 5th sec. of the act of 1928, ch l29 entitled 'a
supplement to act entitled an act to amend the
Lottery system" This third count rests also in
part the acts of 1916, ch. 100, and ls47 ch 2s4
The act of 1916 is entitled act to prevent frauds
on the rerenue and the act of l847 is supplement to
it, to prevent frauds the repenue and provides
punishment by fine and Imprisonment of any per-
son who violates the first second and fourth sec
tons of the act of 1916, which prohibits the sale of
foreign lottery tickets, in its first section and i'm
poses fine of fifty dollars to be recovered before
the Justice of the Peace, in action of debt in the
name of the State, on the suggestion of the commits
soners of Lotteries, who to receive all fines pro-
vided under this act and pay one-half to the in
former and the other to the State.
The second section of the act of 1876 prohibits
the sale of domestic lottery tickets without license
from the Commissioner of Lotteries, and the fourth
section prohibits the employment of any negro or
colored person by licensed ticket vendor or any
other person, to do any of the things prohibited by
the act. Next to this comes the supplementary act
of lS47, ch. 2S4, which enacts that any offender
against the first, second and fourth sections of the
act of lS46, shall be liable to indictment therefor
and upon conviction, fined $50 and costs, and be
imprisoned in jail not less than 60 days nor more
than six months, &c.
The fourth count is drawn on the act of 1923,
chap l29 section s. and charges the traverser with
agreeing to sell foreign lottery ticket to John S.
Pointer, the witness and informer.
The fifth count charges him with selling foreign
lottery ticket to the lntormer, (Which was agreed
to be) punishable offence for the violation of the
5th section of the act of the Constitution of Mary
land
The sixth count charges the setting up of a notice
or sign for selling lottery tickets, &C.. contrary to
the act of 1927, chapter l60, section Z; and 1925
chapter No. section Is.
The seventh count for setting up devise for SELL
ing lottery tickets against the act of 1927 chapter
l60. section 7.
The Sth count for setting up notices to deceive
the people, about selling lottery tickets in this State
against the act of 1927. chapter 160 section g. ard
1928, chapter l64, section Is.
The indictment drawn with great technical
acumen by Mr.. F. Pinckney, a most learned plead
er, and the case argued with great ability by the
counsel for the traverser and the State at the
cusion of which the mind of the Court was left in
considerable doubt
In order to ascertain the law of the case it is ne
tn first taya tha facts Tba Wv
witness produced on either side was John s. Pom
tier, reliable witness, who swore that John Clark
sold him the ticket in the Delaware Lottery charged
in the indictment as foreign ticket; and also an
order from the traverser (John Clark on France
Co., to deliver to witness certain ticket in the
Sussex County Lottery of the State of Delaware,
for each ofwhich he paid said Clark one dollar.
In the first place, the Court will adjudge these
transactions not to be what is vulgarly called lot
terry policies which words are not to be found in
any of the acts of Assembly, but vulgary used to
designate the eyasions of the various acts. They
are said to be the contrvance of lawyer who prac-
tced in this city, (Charles Mitchell,) and baffed
the Legislature for years. The traverser is not in
dicted under the acts against vending lottery poll
cies, and therefore cannot be found guilty under
them. If he had been so indicted the might
have been different, as these acts may be still in
force against insuring the drawings of figures &C.
But this is not the the Court is called upon to
decide in the indictment against Clark, because he
sold foreign lottery tickets and not lottery policies,
according to the testimony of the only witness in
the case. The Court cannot, therefore, convict him
under any of the acts prohibiting the sale of lottery
policies, which defined in various acts to be in
surfing the drawing of figures, &C., in the different
lotteries, both foreign and domestic. He is not
charged with such offence, but only with selling
foreign lottery tickets
1t is curious to trace the of our lottery
tenn. In the beginning lotteries were granted by
special enactments for the purpose of building
churches and colleges to different sects of Chris
tians, and managers, sometimes, vestries, ap-
pointed to conduct them pro formum DOM. After
time lottery commissioners were appointed by the
State authorities to manage all lotteries and to Sc
cure revenue to the State treasury. In l772 all
lotteries abolished also by the Constitution of
1885, and lastly by the new Constitution Here the
whole system, far the policy of the State its
is concerned has received its quietus. The
questions for the Court decide is whether the in
dictment against John Clark is proved. Secondly,
whether there are any pains and penalties of the
laws which ought to enforced against him. 1t may
be proper here to enquire whether the offence he is
charged WITH viz selling foreign lottery tickets is
rmatum IN and punishable by common law, or only
matna prohibitun and punishable by the operation
of the acts prohibiting such sales. al
The Court cannot believe this offence as charged
to be naalum an se because great number of the
only grants of lottery schemes made to various
sects who differed widely about articles of faith but
no sect ever declined drawing a revenue from a
lottery upon the scruple of its being system Of
gambling. Besides, every other species of gam
ing, such faro and the like, is punishable under
the various acts of Assembly, and seldom if ever
prosecuted at common law. s;1t
The original Constitution Of this State in l776
contains no provision for against lotteries, and
the Legislature granted from that time until the
act of 1892, ch So, and after the act of 1892,
great number of lotteries. The act pro-
hibited all persons and bodies corporate or po
itic in this State, without the permission of the
Legislature to propose to the public any scheme of
| lottery, &c., under a penalty of five hundred
pounds, &c. Selling lottery policies never per
mtted by the Legislature, and all their acts were
enacted to suppress this traffic by fines and penal
| ties, &c. This course of proceeding shows coneu-
sivey that lottery schemes were not considered by
the Legislature infractions of the common law nor
naimns an se from the earliest period of the history
When the Constitution of I776 was superseded
by the Constitution of 1884 and 1885, ch. 2l6 sec
l, forbids the Legislature, after the expiration Of
the existing lottery grants, to pass any law author
zing the drawing of any lottery, &c. -a.
In 1877, chapter 154, lottery commissioners were
appointed to superintend lotteries. The of ls45
4 chapter 80, is entitled can act imposing a tax or
the sale of lottery tickets to aid in paying the debt
various acts in detail but to show that the policy
| OF the Legislature was to encourage the sale o
| ticketsto make revenue for the State. 1l53
At the present time, we have no lottery system il
the State all the interest of the State in Lotterie
has been sold to the firm of France Co., by act o
/ commissioner abolished.
/ The Court cannot consider that any is PROVED
against the raverser, embraced by the act of 1856
CHI 1876, entitled can effectually to ureven
gambling" which the law construes to apply t
wagering, and insuring what is called lottery poll
cies, whereas Clark is only proved to have sold
foreign lottery ticket and an order on France
Co., to give witness another foreign ticket, whic
is the same offence as if Clark had delivered bot
the foreign tickets to witness by his own hands, h.
4 We will next consider as rapidly as possibl,
whether the rayerser can be punished under the az
OF 1873, ch. l29, sec. A. entitled 'ssupplement
an act entitled act to amend the Lottery system;
also the act of ls46, ch. l09, and lS47, ch. 2S
! which are supplements to prevent frauds on h
reuente; or lastly under the 9TH section Of the II
article of the present Constitution, which abolish