The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1870-02-16

N.
demurrer 10 Indictment
The defendant was bound over by Alderman Kerr
upon the charge OF selling lottery policies. An in
to which he has filed general demurrer.
The Indictment contains i've counts.
The first count charges that the defendant "un-
lawfully and knowingly did expose To sale ana did
cause to be exposed to sale, TO Charles W. Wood,
certain written device and lottery policy intended
TO entitle the holder and bearer thereof prize
in lottery, further description OF which said lot
terry the Grand Inquest are unable to give eto etc
The second count charges that the defendant un-
lawfully did sell and cause to be sold to the said
Wood q certain lottery policy etc.
The third count charges the defendant with
lawfullyland knowingly erecting and setting up
lottery, further description of which said lottery
the Grand Inquest are unable to give, ect
The fourth count charges the defendant with
opening lottery; and the 1fth count with being
concerned In managing and carrying on lottery.
Upon the argument the counsel for the defendant
moved to quash the indictment upon the ground
that 1t contained charges which are separate and
distinct from the onense for which he was bound
over, and punishable In different manner
In response to question Of defendants counsel,
the District Attorney distinctly stated that this bill
did not belong to the class known in our practice as
Dstrict Attorneys bills" that s, bill l:sent ia to
the Grand Inquest without previous binding over,
upon his own motion, in she interests Of public JUS
tice, and upon his official responsibility But that
the said bill was found in the usual way in pursu-
ance OF O previous arrest and binding over. This
motion must therefore be determined by the law
applicable to the latter form of proceeding.
The objection referred to cannot be urged against
the first and second counts The charge before the
Alderman was seliug lottery policy. This involves
the charge OF exposing it for sale. 1t could not
well have been sold without having been exposed
for sale Nor do think the remaining counts are
Objectionable upon this ground. 1t cannot be fairly
said that the oenses charged in the last three counts
are not Incident to- and arising out of, the original
transaction, to wit:-The selling Of lottery policies.
The District Attorney is not bound by the exact
phraseology Of the alderman. lie may mould his
Indictment TO suit the facts of the case 80 that he
do not charge another and distinct onense-a diff
ferenttransaction, having no connection with the
act for which the defendant was bound over.
But it is urged that the counts are all bad upon
demurrer for the reasons,
First That the Indictment does not show upon its
face that the lottery referred to was an illegal lot
tery and
Second That the Indictment does not contain any
description OF the ticket or policy sod.'
1t ia clear that certain lotteries are lawful while
others are prohibited by statute, the Indictment
must show that the lottery complained of belongs
TO the latter class or it will be bad upon demurrer
1t is equally true that If all lotteries unlawful,
the indictment need not charge set out the kind
of lottery or the object for which it is set up
CT The act Of Si l7th Of February, lIe2 which was the
ever to be common and public nuisances. This act
was subsequently repealed and its main provisions
reenacted BY the act Of 2oth Of January 1892, aud
by the act OF 1st March, 1885, declaring that every
lottery and lotteries, device and devices in the ma
lished, and shall be unlawful. The latter act was
materially qualified by that of March, 1s47. The COM
| missoners to revise the Criminal Code reviewed all
| the statute laws upon this subject in their report
see p. 2l and sections 81 "a Of this code con-
tain all the law in reference to lotteries Section 81
provides that "All lotteries not authorized by law,
whether public or private for moneys, goods wares
ments, or other matters things whatsoever are
| hereby declared to be common nulsances"
The codiners In drafting this section evidently con-
tempated that there might be such a thing as law
| full lottery. Otherwise they might well have said
that all lotteries shall be unlawful, and have omitted
the clause respecting moneys, goods, etc. etc.
plusage Ana yet slngularly enough, while the evil
dent intention would appear to be to narrow the ope
the terms OF the act seem broad enough to include
| every description OF them.
The term lottery must be understood to be used
| in the act in its general and known Specification.
Webster defines 1t to be "a scheme for the distrbu-
ton OF prizes by chance or the distribution thereof"
johnson speaks Of lottery as "a distribution OF
prizes by chance-a play in which lots drawn for
prizes" Chambers Encyclopedia defines lottery
to be "a game OF hazard in which prizes are drawn
| by lot" and Bouviers Law Dictionary is substan-
ay T e keepps n ew Ss e Se ss e
tions OF lottery-that it is scheme for the distrl
button OF prizes by chance, 1t would seem to be diff
cult to set up suca thing as legal lottery In Penn
| sylvania We must not confound the de-
cison OF certain questions by lot with
be Obliged to do certain thing or go 4to a
given place upon specified day, and they may
legally decide by lot which OF them shall do the said
thing, or go to The said place The members OF
deliberatye body may by lot determine their seats.
nav be made by o AND yot not oteq SscTed
history contains several instances Wnere property
has been parted and divided by lot-Psaln 22, IS;
Matthew a. 35: Acts 26: Levlticus:l6 1t is not
every game OF chance that will institute lottery.
| Human life has been said to be a game OF chance,
and some writer's speak OF it as lottery Shake
speare, Dryden and other poets so refer 10 1t. But
these and many other familiar instances that
in the sense in which the term is used in the criminal
law. The latter refers to something in which there
are supposed prizes and certain blanks In the in
stances above referred to there is no drawing OF
prizes by chance which is the very life and soul OF
lottery. On the other haud, the disposal OF any
species OF property, or in the comprehensive lam
guage OF the Act OF Assembly, any other matters or
things whatever" by any OF the schemes or games of
chance popularly regarded as innocent, come within
the terms OF the law. The raties which occur almost
daily at tne streetcorners, in barroolns, at fairs
ana at other places are as clearly Violations OF the
| criminal law as the most elaborate and carefully
organized lotteries by which the ignorant and credu-
| louS are sWlndled out OF their hard earnings.
| But while 1t seems to be dinicut to define legal
lottery In this case the Act OF Assembly referred to
eyldenuy contemplates that there may be such q
thing, and because there may be legal lottery It s
necessary that this Indictment should show upon Its
lace thst the lottery complained OF was illegal. This
1865, In the case OF the Commonwealth VS.. Carpen-
| ter. i nave been furnished with copy Of the
0PdiOn 11sESrea IN mat case and concur iuly In
But the nrst two counts OF the indictment under
consideration dlner from the oae in Com. Car
penter In three material points viz
First In charging that the holder or bearer OF the
policy is entitled TO prize in lottery.
Second. In setting out the name OF the person to
, whom the policy was sold; and
Third. In stating that further descrIpton OF the
said lottery the Grand Inquest are unable to give
The ayerInent IN the bin that the policy entitled
clearly stamps 1t as an illegal lottery That is OF
the very essence OF the offense The word prize In
., tnis Sonnecuoh nleans n something to be drawn
may be, 1t is something OF value, and ia covered by
I the words IN the statute "or other matters Of
ment OF the ilegality OF the lottery is stated argu
mentatively, 1t is sufflceDt to observe that arGu
mentatiye pleading Is mere formal defect whlcl
raj demurrer. The People VS. Warren ma 1 Barb
sl4, citing ] saund 274; John al4
hHHe sed eaSglng the Co. was the cas-,