§ 931. Related to last chapter.- The subject of this chapter is within the principles of the last. Its separate treatment here is simply from convenience. § 932. How divided. We shall consider, I. The law of the offense; IL. The procedure. I. THE LAW OF THE OFFENSE. any stat § 933. In civil jurisprudence. Without the aid of ute, betting on an election is contrary to the policy of the law, and the sum bet cannot be recovered 1 in an action against either the party or the stakeholder. There are also in some of the states statutes to enforce this doctrine.3 § 934. Criminal by statute.- Pretty generally in our states, statutes have made such betting a crime. Their terms vary: as, in Kentucky, they are or have been, "shall wager or bet any sum of money, or other thing, upon the election of any of the 1 Bishop, Con., §§ 529-532. 2Ball v. Gilbert, 12 Met. 397; Worthington v. Black, 13 Ind. 344; Murdock v. Kilbourn, 6 Wis. 468; Duncan v. Cox, 6 Blackf. 270; Lloyd v. Leisenring, 7 Watts, 294; Wagonseller v. Snyder, 7 Watts, 343; Columbia Bank, etc. Co. v. Haldeman, 7 Watts & S. 233, [42 Am. D. 229;] Harper v. Crain, 36 Ohio St. 338, 343, [38 Am. R. 589;] Gilmore v. Woodcock, 70 Me. 494; Brush v. Keeler, 5 Wend. 250; Cooper v. Brewster, 1 Minn. 94; Barham v. Livingston, 12 La. An. 618; Bevil v. Hix, 12 B. Monr. 140; Guyman v. Burlingame, 36 Ill. 201; Nudd v. Burnett, 14 Ind. 25; Sipe v. Finarty, 6 Iowa, 394; Craig v. Andrews, 7 Iowa, 17; Wheeler v. Spencer, 15 Conn. 28; Gardner v. Nolen, 3 Harring. (Del.) 420; Wroth v. Johnson, 4 Har. & McH. 284; Bunn v. Riker, 4 Johns. 426, [4 Am. D. 292.] But see Morgan v. Pettit, 3 Scam. 529. And see ante, §§ 848, 872, 873; Pulver v. Burke, 56 Barb. 390; Johnston v. Russell, 37 Cal. 670. Hickman v. Littlepage, 2 Dana, 344; Morgan v. Pettit, 3 Scam. 529; Com. v. Moore, 2 Dana, 402; Givens v. Rogers, 11 Ala. 543. And see Conner v. Raglan, 15 B. Monr. 634; Com. v. Avery, 14 Bush, 625, [29 Am. R. 429. In Missouri it is held that where two persons placed wagers on an election, officers" mentioned in a previous section, "within six months next before the election;" in Alabama, "make any bet or wager of money, or other thing of value, upon any election;" in Indiana, "bet or wager any money or other valuable property on the result of any election."3 66 § 935. Election over. The foregoing Alabama provision was held not applicable to a betting after the election is over. But in Mississippi, under words slightly different,- namely, upon the result of any election," the court deemed that a betting after the votes have been cast and before the result is ascertained, is, while less mischievous than a betting before they are cast, within the words and sufficiently within the spirit of the act, therefore adjudged it punishable." What elections.- In the absence of special terms, these statutes do not extend to elections for state officers in other states, or to unauthorized elections within the state; but they do, to an election in another state for officers of the United States," or, a fortiori, for the like in the state of the prosecution." 936. "Game" and "gaming."-We have seen that these words are in meaning specially flexible. Under the somewhat varying Indiana statutes, betting on an election has been held to be and not to be a "game." 99 10 and thereafter settled by the loser 2 Givens v. Rogers, 11 Ala. 543. For the Ohio law, see Veach v. Elliott, 1 Ohio St. 139. Bicknell, Crim. Pr. 425, referring to Laws 1857, p. 35, 2 G. & H. 465, note f. 4S. v. Mahan, 2 Ala. 340. Miller v. S., 33 Miss. 356, [69 Am. D. 351.] 6 Hickerson v. Benson, 8 Mo. 8, [40 Am. D. 115.] 7 Miller v. S., 33 Miss. 356; Gregory v. King, 58 Ill. 169, [11 Am. R. 56,] overruling Smith v. Smith, 21 Ill. 244, [74 Am. D. 100,] and Morgan v. Pettit, 3 Scam. 529. 8 McClurken v. Detrich, 33 Ill. 349; Quarles v. S., 5 Humph. 561; ante, $ 205. And see Williams v. S., 12 Sm. & M. 58. See further on the matter of this section, Com. v. Kennedy, 15 B. Monr. 531. 9 Ante, § 857-861. 10 Hizer v. S., 12 Ind. 330; Woodcock v. McQueen, 11 Ind. 14; Frazee v. S., 58 Ind. 8, overruling S. v. Henderson, 47 Ind. 127; [Schlosser v. Smith, 93 Ind. 83.] § 937. What the betting. A bet implies risk to both parties. Therefore a sale of goods on a fair valuation, to be paid for when a particular candidate is elected, is not a wager; for the purchaser can in no event sustain a loss. But where the agreed price is above their value, the buyer is liable to lose the difference between the two sums, therefore the transaction is a wager. And there are cases which hold generally, that any promise to pay money if a person named is elected to office is a wagering contract, not enforcible. Illustrations of bet are, that a particular candidate will receive a specified number of votes, that he will beat another candidate, and that the result of the election will be so or so. An agreement between parties that the one who fails in an estimate shall make the other a present of a coat is a bet. II. THE PROCEDURE. § 938. Course of discussion.- We shall consider: First, the indictment; secondly, the evidence. First. The indictment: Winning. The allegation may be, if so the statutory terms are covered, that the defendant, at a time and place mentioned, did unlawfully win and take from a person named one hat [of the value of, etc.],9 by then and there unlawfully betting and wagering with him for the said hat upon the result of a certain election had and held on, etc. 10 It has been adjudged ill to charge that, at a specified time and place, the defendant did "win" money on the "result" of an election subsequently held." § 939. Betting.- Where it is a statutory offense to "wager or bet" "any money or other valuable thing" "upon the result of any election," the allegation may be that, at a time and place specified, the defendant bet, with a person named, a fifty 1 Ante, § 871. The contingency is determined when the vote is cast, though the official count and returns have not been made. Hizer v. S., 12 Ind. 330. 2 Quarles v. S., 5 Humph. 561. Givens v. Rogers, 11 Ala. 543; Parsons v. S., 2 Ind. 499. 4 v. Finarty, 6 Iowa, 394; Nudd v. Bur- 5 Com. v. Kirk, 4 B. Monr. 1. 8 Cain v. S., 13 Sm. & M. 456. 9 See ante, §§ 427, 444. 10 Hizer v. S., 12 Ind. 330; Bicknell, ♦ Craig v. Andrews, 7 Iowa, 17; Sipe Crim. Pr. 427. 11 S. v. Windell, 60 Ind. 300. dollar bank-note against a horse, upon the result of an election to be held, etc.1 Or § 940. Continued. The form may be that, at a time and place alleged, the defendant did lay a wager and bet of fifty dollars with one B. that C. would be elected governor of, etc., at an election to be held, etc., the said C. being then and there a candidate nominated for public office, to wit, the office of, etc. § 941. Averment of election.- Speaking of the form epitomized in the last section, Sergeant, J., said: "The objection is that the indictment does not aver that there was an election for governor about to be held in October, 1838; but it avers that the defendant made a bet dependent on an election for governor to be held in October, 1838. We think the fair implication is, not only that such bet was made, but that the election was to held at that time; and that the commonwealth would be bound in this charge to prove both these facts." 8942. Expanding beyond statutory words.- On the question of expanding the allegation beyond the words of the statute, we have from Kentucky some intimations which perhaps may not be deemed in accord with the first two of the forms. just indicated. The statute made punishable any one who "shall wager or bet any sum of money, or anything of value, upon any election under the constitution and laws of this commonwealth, or under the constitution and laws of the United States." And Marshall, C. J., observed: "It is not a penal offense, under any statute, to bet that a certain individual will not be elected to a certain office at a certain election, unless he is a candidate for that office, or is voted for to fill it, or is intended or expected to be voted for, or is expected to be a candidate for it. It is not a statutory offense to bet that a man will not be a candidate for a particular office; and, unless he be a candidate, or be voted for or proposed, it may not be an offense to bet either that he will or that he will not be elected." So, proceeding on this interpretation, the court held it insuffi2 Sherban v. Com., 8 Watts, 212, [34 Am. D. 460.] 1 Miller v. S., 33 Miss. 356, [69 Am. D. 351.] And see Williams v. S., 12 Sm. & M. 58; ante, § 935. In 2 Morris, State Cases, 1809, the form, in substance, given in the next section of the text, as approved in Pennsylvania, is inserted for use in Mississippi. 3 Sherban v. Com., 8 Watts, 212, 213, [34 Am. D. 460.] And see, under the title "Election offenses," ante, § 828 et seq. 4 Crim. Pro., I, §§ 623-630; ante, SS 447, 796, 909. cient simply to set out a bet that, at an approaching election specified, a particular person named will or will not be elected. The allegation must go further and state that this person was a candidate, or was voted for, or was in some manner proposed for the office at the election.1 Now, § 943. As to which, the conclusion of the court would seem legitimately to follow from its interpretation of the statute. But so strict a rendering is believed, on principle, not to be required. If, before the political parties had held any preliminary meetings, one person should bet with another that an individual named would not be elected to the office, the evil meant to be prevented by the statute would be done; and the offense thus committed ought not to be deemed in law to be taken away, should the former person, stimulated by his interest in the bet, spread so many falsehoods about the individual as to preclude his being even talked of afterward for a candidate. Such a case coming, therefore, within the policy of the law, as well as its words, would not demand expansion in the allegation beyond the statutory terms. § 944. Name of person with whom the bet.- By what is believed to be the current of decision, and it is submitted in principle, the indictment should state the name of the person with whom the bet was made, if known; or if unknown, aver it to be so. Yet an indictment was sustained which charged that two defendants did "unlawfully bet and wager a sum of money, to wit, one hundred dollars, on the result of an election. which was held," etc.; for it sufficiently appeared that the betting was with each other,—a form not to be commended. § 945. Value.-The value of the thing bet should be mentioned if necessary to its description or an element affecting the punishment. Otherwise it need not be." $946. Summary.- The indictment must state when the election was to be held. But it need not add that the law required 1 Com. v. Shouse, 16 B. Monr. 325, [63 Am. D. 551.] 2 Ante, §§ 894-897; post, § 1037. 3 Lewellen v. S., 18 Tex. 538; S. v. Little, 6 Blackf. 267. In Tennessee this averment is held not to be necessary; a statute there providing that "it shall be sufficient to charge the general name of the game, with out setting forth and describing with or against whom they may have bet or played." S. v. Trotter, 5 Yerg. 184. See S. v. Smith, Meigs, 99, [33 Am. D. 132;] post, § 1037. 4 S. v. Smith, 24 Mo. 356, 357. 5 Ante, § 938, and places there referred to; post, § 949. 6 Lewellen v. S., 18 Tex. 538. |