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

of error 10 the sufiicency OF the indictment. IL
was urged tnat II should expressly aver the vendg
OF the tickets OF lottery established or set on 1905
for the purpose OF dsposng OF real estate, goods,
moneys, or things iD action The court say that II
should so appear, but that the averment that tne
ticket purpOrted to ente the holder 20 draw prize
In lottery was sufficient averment OF the illegal
cnaracteI OF SAID lottery, and is susceptible OF no
Tested by the ordinary rules Of interpretation and
giving TO the words prize In lottery" as charged
In the nrst ana second counts, their plain and Oo-
vious meaning, there can be no room to doubt that
the lottery referred to In said counts Is an Illegal
lottery within the meaning Of the act OF Assembly
The nfty-hfth section OF The revised criminal code
provides inter ala that "any indictment under this
Client which describes the ofYense in the words OF
the law, although II does not set out the name or
locauon OF such lottery nor set out In words ana
figures the ticket policy, device sold bartered, or
exchanged" etc, etc.
II was urged upon the argument that notwith-
standing this section an indictment which does
not describe the lottery or policy sold is bad ana
decision OF this Court by Judge Kelley in 1s47, is
cited in support of this vew | find no report OF
this case beyond brief reference in note at foot
OF page s42 OF Whartons Precedents, "a ed. This
decision was made upon an indictment under the
act OF le4I, which is identical with the present sta
tute and to the extent of the principle deci1es is
au hority. But in that Judge Kelley held that
an Indictment merely averring sale of policy but
not stating to whom, mentioning the ticket Is not
sufficient In this case the indictment expressly
AYERS tna5 t tne policy was sold TO Charles W. Wool
further description Of the said lottery.
The distinction between the cases is manifest 1t
names OF the purchasers, It being alleged that the
names are unknown TO the jurors. People V. Taylor
DEMO- 81. The rule tthatE matters OF description
must be set out in the indictmenl must not be car
ried so far as TO shield from punishment when it is
plain that crime has been committed, and there
fore the ndicting jurors are allowed to state that
particular fact not vital to the accusation is to
them unknown. Ibid
Here the ofrense is substantially CHARGED when il
is averred that the defendant sold policy to Charles
Wood, purporting to entite the holder TO prize in
q lottery, further description OF which said lot
terry Is to the jurors unknown. It IL sufficiently
certain to enable him to know how to plead and
to what; and also to protect him from a second
prosecution from the same ofiense by the plea of
autrctois dcqWit or dttretois convict.
For the reasons indicated do not think the first
and second counts Of this Indictment are bad upon
demurrer. But under the former decisions of this
Court the third fourth, and NTH counts are fatally
defective. They squarely within the ruling OF
Judge ludlow in Com. VS.. Carpenter, before re-
ferrcd to- They charge merely the erecting of a
lottery without anything to indicate that 1t is an
Grand Inquest were unable further to describe the
said lottery avail to save these counts.
Said averment only establishes tho fact
that the Grand Inquest had no sufficient evidence
Illegal. And while q decision of q OF this de-
scription upon technical point of law is always to
be regretted yet In favor Of the liberty OF the citizen,
the good Of society, as wcl as our plain duty re-
quires us to administer the law we find it, without
regard to the character Of the parties who may
before MS, or the nature of the orenses they are
its whole merits be heard upon the first and
second counts which are sustained.
The motion to quash is overrued. The demurrer
is overruled as to the first and secod counts, and
sustained as TO the third fourth, and fifth counts.
There are seven OF these cases In which the indCt-
ments and demurrers are similar. They have been
argued and considered together, and the above
judgment may be entered in each case.
AS this is one OF considerable public interest,
and involves important principles Of law, have
submitted 1t to the other judges OF this court, all OF
whom concur in this opinion.