Gift exhibition. A gift exhibition conducted as follows was adjudged to be a lottery: Each patron bought a ticket at the door with a number on it. An exhibitor, at the close of the exhibition, called at will a number, and the person whose ticket bore it came forward. If the former liked his appearance, or thought he would advertise the show well, he presented him with one of the articles advertised as gifts; or, at the option of the former, the distribution of presents could be dispensed with. It was urged for the defendants that their keeping things so under their control, and dispensing only gifts, prevented the scheme from being a lottery. But the court deemed that the principle of the lottery, chance, controlled the whole proceeding; as, whether a man's number would be called, whether the exhibitor would fancy his appearance, and whether he would be in the mood to make any distribution of prizes.1 § 957. Constitutional questions. The legislation against lotteries has raised some constitutional questions; among which one of great importance is Making penal after franchise granted. When the legislature has granted to private persons the right to raise money by a lottery, some have deemed the grant a contract, which cannot be annulled by a statute making the lottery a crime, especially after it is accepted by the grantees and a consideration paid.2 Am. St. R. 168, 31 L. R. A. 835; Washington Glass Co. v. Nusbaugh, 19 Ind. Ap. 105, 49 N. E. R. 178.] 1 S. v. Shorts, 3 Vroom, 398, 401. The programme of an entertainment in England stated that, at its conclusion, the proprietor will "distribute amongst his audience a shower of gold and silver treasures on a scale utterly without parallel, besides a shower of smaller presents, all of which will be impartially divided amongst the audience, and given away." The audience was admitted on pay. The seats were numbered. At the time for distribution he called out the numbers of the seats, one after another, giving an article to each occupant, until all the articles were distributed. And this was held to be a lottery. Morris v. Blackman, 2 H. & C. 912. [See Barclay v. Pearson, 3 Reports, 388, [1893] 2 Ch. 154; S. v. Overton, 16 Nev. 136; McDonald v. U. S., 63 Fed. R. 426, 12 C. C. A. 339; S. v. Mumford, 73 Mo. 647, 39 Am. R. 532; Com. v. Emerson, 165 Mass. 146, 42 N. E. R. 559; S. v. Willis, 78 Me. 70.] 2 Kellum v. S., 66 Ind. 588, [overruled in the later case of S. v. Woodward, 89 Ind. 110, 46 Am. R. 160;] State Lottery Co. v. Fitzpatrick, 3 Woods, 222; S. v. Miller, 50 Mo. 129; S. v. Sterling, 8 Mo. 697; S. v. Hawthorn, 9 Mo. 389. See Mississippi Society of Arts, etc. v. Musgrove, 44 Miss. 820, [7 Am. R. 723;] Broadbent v. Tuskaloosa, etc. Ass'n, 45 Ala. 170; S. v. France, 72 Mo. 41; Kitchen v. Greena baum, 61 Mo. 110. But, contrary to this view, the legislative right to make penal the lottery to the practical annihilation of the charter was maintained by the courts of a part of the states; and subsequently the supreme court of the United States, the tribunal having the ultimate jurisdiction over the question, has so settled it. "The contracts which the constitution protects," said Waite, C. J., "are those which relate to property rights, not governmental." And "all agree that legislation cannot bargain away the police power of the state."? Penalty in form of tax.-A penalty for carrying on a lottery cannot be imposed by a statute declaring it to be a tax, and authorizing the tax collectors, in default of payment, "to 1 Moore v. S., 48 Miss. 147, [12 Am. R. 367;] S. v. Morris, 77 N. C. 512; Phalen v. Com., 1 Rob. (Va.) 713. And see Randle v. S., 42 Tex. 580; [S. v. Woodward, 89 Ind. 110, 46 Am. R. 160.] 2 Stone v. Mississippi, 101 U. S. 814, 817, 820. The learned chief justice added, quoting: "Irrevocable grants of property and franchises may be made if they do not impair the supreme authority to make laws for the right government of the state; but no legislature can curtail the power of its successors to make such laws as they may deem proper in matters of police." Referring to Metropolitan Board of Excise v. Barrie, 34 N. Y. 657, 668; Boyd v. Alabama, 94 U. S. 645. He proceeded: "The question is, therefore, directly presented, whether, in view of these facts, the legislature of a state can, by the charter of a lottery company, defeat the will of the people, authoritatively expressed, in relation to the further continuance of such business in their midst. We think it cannot. No legis lature can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants. [See ante, §§ 39a, 40.] The supervision of both these subjects of governmental power is continuing in its nature, and they are to be dealt with as the special exigencies of the moment may require. Government is organized with a view to their preservation, and cannot divest itself of the power to provide for them. The people, in their sovereign capacity, have established their agencies for the preservation of the public health and the public morals, and the protection of public and private rights. These several agencies can govern according to their discretion, if within the scope of their general authority, while in power; but they cannot give away nor sell the discretion of those that are to come after them, in respect to matters the government of which, from the very nature of things, must 'vary with varying circumstances.' They may create corporations, and give them, so to speak, a limited citizenship; but, as citizens, limited in their privileges, or otherwise, these creatures of the government creation are subject to such rules and regulations as may from time to time be ordained and established for the preservation of health and morality." Pages 819, 820. And see Phalen v. Virginia, 8 How. (U. S.) 163. issue execution as in other cases of defaulters." The liability must first be determined by the verdict of a jury.1 Seizure of materials.- The Massachusetts statute 2 authorizing magistrates to issue warrants for the seizure of lottery tickets, or materials for a lottery, unlawfully in possession, is constitutional.3 § 958. Advertising. There are statutes, not requiring special expositions, against advertising lotteries; also — Having or selling.— Against having for sale or selling lottery tickets and the like. 5 Now, 959. Foreign lotteries. Within the reasons of these provisions are advertisements, tickets, and the like, of lotteries conducted in other states, where they are lawful. The enticement to our citizens, and its consequences, are the same as where the drawings are at home. Therefore statutes in general terms forbidding things of this sort are construed as applying to these foreign lotteries the same as to domestic. And the statutes are not unconstitutional." 960. Construction of the statutes.- Various questions have arisen upon the construction of these statutes. 1S. v. Allen, 2 McCord, 55. 2 R. S., ch. 142. Thus, Wilkinson v. Gill, 10 Hun, 156; Edelmuth v. McGarren, 4 Daly, 467; Lan 3 Com. v. Dana, 2 Met. 329. And ahan v. Pattison, 1 Flip. 410; [Smith see post, § 959. ♦ Ante, § 207; Com. v. Clapp, 5 Pick. 41; Com. v. Hooper, 5 Pick. 42; P. v. Charles, 3 Denio, 212, 610; S. v. Sykes, 28 Conn. 225; Charles v. P., 1 Comst. 180; [Hudelson v. S., 94 Ind. 426, 48 Am. R. 171; Hart v. P., 26 Hun, 396; S. v. Moore, 63 N. H. 9, 56 Am. R. 478; Louisville Courier-Journal Co. v. Com., 92 Ky. 22, 17 S. W. R. 163; S. v. Kaub, 90 Mo. 196, 2 S. W. R. 276; Caminada v. Hulton, 64 L. T. 572.] 5 Ante, § 205; S. v. Scribner, 2 Gill & J. 246; Com. v. Chubb, 5 Rand. 715; Com. v. Dana, 2 Met. 329; P. v. Payne, 3 Denio, 88; Phalen v. Com., 1 Rob. (Va.) 713; P. v. Warner, 4 Barb. 314; P. v. Sturdevant, 23 Wend. 418; Salomon v. S., 27 Ala. 26; Salomon v. S., 28 Ala. 83; Fontaine v. S., 6 Baxt. 514. As to the civil action, see McNight v. Biesecker, 13 Pa. St. 328; v. S., 68 Md. 168, 11 Atl. R. 758; Ford v. S., 85 Md. 465, 37 Atl. R. 172, 60 Am. St. R. 337, 41 L. R. A. 551.] Freleigh v. S., 8 Mo. 606; Com. v. Chubb, 5 Rand. 715; S. v. Pinchback, 2 Mill, 128; S. v. Mace, 5 Md. 337; Com. v. Lottery Tickets, 5 Cush. 369; Morton v. Fletcher, 2 A. K. Mar. 137, [12 Am. D. 366.] 7 Charles v. P., 1 Comst. 180; S. v. Sykes, 28 Conn. 225; Wilkinson v. Gill, 10 Hun, 156; Rolfe v. Delmar, 7 Rob. (N. Y.) 80. See also Com. v. Harris, 13 Allen, 534; ante, § 205. [See Mackie v. Persian Investment Corp., 44 Ch. Div. 306; Ex parte Shobert, 70 Cal. 632, 11 Pac. R. 786, 59 Am. R. 432; Kohn v. Koehler, 96 N. Y. 362, 48 Am. R. 628; Ballock v. S., 73 Md. 1, 20 Atl. R. 184, 25 Am. St. R. 559, 8 L. R. A. 671.] 8 S. v. First District Judge, 32 La. Against policy, strict.- Where lotteries are contrary to the general policy and laws of the state, no uncertain or doubtful terms in a municipal charter will be construed to authorize them in the particular locality; as, Disposal of property. If it empowers the corporators to dispose of property "in any manner they deem best," it does not operate to enable them to do it by means of a lottery, where prohibited by the general law.2 II. THE PROCEDURE. § 961. Indictment in general. The statutes and the offenses under them are so numerous and diverse that no general form for the indictment becomes possible. The particular statute must be duly followed, according to the rules for indictments on statutes.3 Joinder. The joinder of defendants and offenses must conform to the same rules of pleading as in other cases.1 An. 719; Com. v. Harris, 13 Allen, 534; Miller v. Com., 13 Bush, 731; Hill v. S., 49 Ala. 395; Albertson v. S., 5 Tex. Ap. 89; [S. v. Voss, 49 La. An. 444, 21 S. R. 596, 62 Am. St. R. 653; Lawrence v. Simmons (Ky.), 9 S. W. R. 163, 1 L. R. A. 172; Barry v. S., 39 Tex. Cr. R. 240, 45 S. W. R. 571; City of Seattle v. Chin Let, 19 Wash. 38, 52 Pac. R. 324.] 1 Boyd v. S., 53 Ala. 601; [S. v. Woodward, 89 Ind. 110, 46 Am. R. 160; Henderson v. S., 95 Ga. 326, 22 S. E. R. 537.] 2S. v. Krebs, 64 N. C. 604. [For statute against using the mails for purpose of sending lottery circulars, etc., see U. S. v. Duff, 19 Blatch. C. Ct. 9; Commeford v. Thompson, 2 Flip. C. Ct. 611; U. S. v. Moore, 19 Fed. R. 39; U. S. v. Dauphin, 20 Fed. R. 625; U. S. v. Mason, 22 Fed. R. 707; U. S. v. Zeisler, 30 Fed. R. 499. Act of congress March 2, 1895, prohibited the carrying from one state to another any paper purporting to be or to represent a ticket, chance or share in or dependent upon a lottery, etc. See U. S. v. Ames, 95 Fed. R. 458; France v. U. S., 164 U. S. 676, 17 S. Ct. 219, 41 L. ed. 595] Crim. Pro., I, § 593 et seq.; Com. v. Harris, 13 Allen, 534; Miller v. Com., 13 Bush, 731; S. v. Yoke, 9 Mo. Ap. 582; S. v. Sykes, 28 Conn. 225; U. S. v. Noelke, 17 Blatch. 554; France v. S., 6 Bax. 478; Com. v. Bierman, 13 Bush, 345; Com. v. Bull, 13 Bush, 656; Com. v. Manderfield, 8 Phila. 457; Pickett v. P., 8 Hun, 83; Roediger v. Simmons, 14 Abb. Pr. (N. S.) 256; Com. v. Manderfield, 1 Pa. Leg. Gaz. R. 37; S. v. Barker, 2 Gill & J. 246; Com. v. Gillespie, 7 S. & R. 469, [10 Am. D. 475;] P. v. Sturdevant, 23 Wend. 418; Charles v. P., 1 Comst. 180; Com. v. Lottery Tickets, 5 Cush. 369; U. S. v. Patty, 9 Bis. 429; [Twist v. S., 111 Ind. 499, 12 N. E. R. 1005; Com. v. Sheedy, 159 Mass. 55, 34 N. E. R. 84; S. v. Dennison (Neb.), 82 N. W. R. 628.] 4 Miller v. Com., 13 Bush, 731; Fontaine v. S., 6 Bax. 514; S. v. McWilliams, 7 Mo. Ap. 99; [Ex parte Hawkins, 89 Ala. 103, 8 S. R. 19.] § 962. Selling ticket. In general, an indictment for this offense, simply following the statute, is good.' But the individual statute and special facts must be duly taken into the account.2 It was in one case adjudged sufficient to say that the defendant, at a time and place mentioned, "did wilfully, unlawfully and knowingly sell, vend, and cause to be sold and vended, what are commonly known and called lottery policies, the particulars whereof are unknown to the jurors aforesaid; and did then and there sell and vend divers of such lottery policies to divers persons, to the jurors aforesaid unknown." The facts thus averred to be unknown, and so not given, were deemed to be but of description, and not of the essence of the offense.' § 962a. Advertising.— The indictment for advertising tickets or a lottery should be framed with reference to the particular statute and facts, and the general rules of pleading. For example, it should probably set out the tenor of the advertisement, though possibly not all courts will so hold. And in proper cases averments and innuendoes should be added, as in libel, to make plain and point the meaning of whatever is not distinctly on its face within the inhibition." § 963. Having with intent.-The charge of having lottery tickets in possession, with the intent to sell them, need not be expanded beyond the statutory words to say that the selling was intended to be within the state." § 964. Setting on foot-(Names and description). - According to a New York case, the indictment for setting on foot a lottery need not set out the tickets sold, or the names of the purchasers, where they are, and are alleged to be, unknown to the grand jury. Yet, in the absence of such allegation, it should describe the lottery; nor is it sufficient in excuse 1 Com. v. Bull, 13 Bush, 656; France v. S., 6 Bax. 478; S. v. McWilliams, 7 Mo. Ap. 99; [Smith v. S., 40 Fla. 203, 23 S. R. 854.] 2 S. v. Barker, 2 Gill & J. 246; Com. v. Manderfield, 8 Phila. 457; S. v. McWilliams, 7 Mo. Ap. 99; France v. S., 6 Bax. 478; Fontaine v. S., 6 Bax. 514; S. v. Sykes, 28 Conn. 225; Com. v. Thacher, 97 Mass. 583; Com. v. Harris, 13 Allen, 534; S. v. Shorts, 3 Vroom, 398; Dunn v. P., 40 Ill. 465. And see post, § 965. [S. u. Kaub, 19 3 Pickett v. P., 8 Hun, 83, 84; [Dunn v. P., 27 Hun, 272.] 4 Crim. Pro., I, §§ 559-563; II, §§ 403, 404, 789, 790, 808, 915. 'S. v. Sykes, 28 Conn. 225. 6 Com. v. Dana, 2 Met. 329. For a like point, see Com. v. Clapp, 5 Pick. 41. And see, as to following the statute, S. v. Kennon, 21 Mo. 262; [S. v. Collins (N. J. L.), 43 Atl. R. 896.} |