The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1873-02-02
THE LOTTERY LAWS.

Interesting Opinion OF Recorder Hackett
Upon the Lottery Laws-He Denies .
Motion to Quash an Indictment for an
Alleged Violation Of That Law.
Yesterday the Recorder filed the subjoined deci-
sion with the Clerk OF the General sessions:-
The People vs.. Morris Harris and George
motion in December term, last was argued
before me to quasn THIS Indictment, which is drawn
upon an offence entirely created by Statute.
The precise words Of the statutory definition
are c0mprehenoed in the Indictment The criti-
cisms OF the defence upon the indictment undOubt-
eddy arise from the obscure phraSeOOgy and In
VOWED sentences contained IN that pleading. 1t Is
not only inartifcialy drawn, but there appear in
1t confusing dispiacements OF subjects and predi.
Gates; "whereln" Is spelled without an "h;'t
statute" Is written IN one count ''statue," ana
'peace, in the phrase, against the peace OF the
game" Is interlined over the word "device" with
only pencil line drawn through the latter word
e n rita wor Proposition in
omitted throughout. The first count grammaticaily
construed would read that purchasers OF tickets
lottery used, instead OF making the word "tnen''
refer to the defendants. 1t may be
nave stated and fe aee to was to
what l shall hereafter say, that have started
hU %ns 70 NOT %oosed upon the Arguments but mo-
erection or Judge; and Bishop lays it down n
Criminal Procedure, s. 1853, 1891 that Judge may
upon his own motion. The counsel for the deiend-
ants has made strong pr-inaa riIcie case and an
exceedingly exhaustive argument against tine
indictments but the question OF Its validity
is not tree from doubt and prefer 70
leave the defendants to their issues by obec-
lions to evidence upon the trial as not warranted
Ill they snail then so regard any offered testimony,
by the manner of charging acts in the Indictment.
Two general propositions OF law are involved IN
this discussion ~.
tristan Indictment should not be quashed In
doubtful case People vs.. EckIord 7th COwen, 635;
Commonwealth VS.. eastman, cushing, r., 1897.
Second-It should be quashed whenever 1t Is
manifest m that no Judgment can be rendered upon
Propose, therefore, to consider this motion as Il
1t was one in arrest OF judgment after sentence pro-
nOunced and the defendants were cOntendng that
the indictment was insufficient to support judg-
ment The only defect alleged IS that the charg-
ana do charge oG
faliy Of what the prosecution seek and
would support verdict that the defendants
within this state had SCI on foot, diu carry on aud
set out in the Indictment and Tor the unlsw-
iul purposes therein mentioned, without au-
taoriaation by any special law for any such
laid down by Bishop in the treatise above cited
at section .6ll:-"Where the offence is purely
lawn (where, in other words, the statute speclh-
cally sets out what acts shall constitute the
ofience), at is. as general rule, sufficient in the
coming fully within the statutory description in
the substantial words Of the statute without any
further expansion OF the matter" IL Is always
best for the pleader in case OF presenting novel
subject matter TO expand it, and to do with pre-
cisiOn and with as much attention to grammatical
construction as II he were writing Tor a newspaper
or periodical The day Tor mere jargOn in pleading
has gone by. 1t Is but fair toward defendant to
give him all the information the pleader can upon
the scope Of the CHARGE and regarding the possible
evidence there may be against him, and 1t Ia
certainly but just towards the Court to save Its
time from all possible questions upon the construc-
ton OF indictments Amid all the Obscurity In
phraseolOgy and verbal confusion OF this indlct-
ment, however, detect the alleged offence gener-
ally (but most general in the terms) charged
in the Identical words OF the statute against
setting on foot devices OF chance for money.
Aside from pursuing the language OF the statute
there Is enough to charge defendants with con-
nection with vending to others an interest In
chance which is as concise definition OF the par
ticular lottery in question as can make and such
an act Is infractIOn Of law. ROlfe vs.. Delmar,
Robertson Sup. Ct R., so; People vs. Payne, 3
DEMO, So; Commonwealth vs.. Thatcher 81 Mass.
r., $50 "a prize concert case) United States
VS.. Olney, / Abb. United States, 275; Dunn
vs.. The People, 40 Illinois R., 465 1.-THE card en-
velope lottery Morris vs.. Backman, Hurl and
Colt, 912 ian English case, where money was dis
tributed to an audience).
cite these cases because, excepting the Payne
case, they are comparatively recent and novel.
Accepting the rule as laid down In Bishop, and
particularly as emphasized in the cases OF The
People VS.. StOckham, Parker Or. r., 424; United
States vs. Gooding, IL Wheaton, 400, and by the
recent cases above referred to, am compelled to
deny the motion to quash.
JOHN K. HACKETT, Recorder.